Politics and the Constitution

If we can step back for a moment from the legal issues that are presently the object of heated debate, we might be able to view the controversy surrounding the Disbursement Acceleration Program (DAP) with a different frame. I propose the perspective of political development especially in relation to the Constitution.

Almost every opinion maker in town has weighed in on the question of criminal culpability on the part of the author(s) of the DAP after the Supreme Court declared major components of this budgetary policy unconstitutional. I am aware that any attempt to look at these events other than in a legalistic (criminal liability) or morally judgmental way (good faith/bad faith) could be taken as justifying the acts that have been committed.

I do not mean to slight the legal consequences of the high court’s decision. But we are not all lawyers. The legal standpoint is only one of many possible positions we can take to make sense of the issues. My own interest as a sociologist is to observe and understand what our society is going through—in particular, to view recent developments as significant indicators of the evolving relationship between politics and law in our young democracy. The changes in this relationship shape not only the conduct of politics but also the way the law—the Constitution and statutes—is interpreted.

There was a time in the life of societies when the exercise of political power was arbitrary, unbound as it was by anything external to it.  Then, people began to believe there was a higher authority from which the powers of rulers emanated.  The belief in a higher law reached its peak during the medieval period.  The tradition of constitutionalism owes its origins to this belief. But this was not a development that occurred overnight. Rather, it unfolded gradually—first through the disaggregation of state powers, and later by the differentiation of the legal system from the political system.

These developments did not change the fact that the constitution remained for the most part a text that lent itself to different and sometimes conflicting interpretations. We need not go far to find an example of this. The pork barrel system, known in our part of the world as the Priority Development Assistance Fund, was affirmed as constitutional in two previous separate rulings before it was pronounced unconstitutional by the “same” Supreme Court.

The last ruling cited the same basic provisions to the same set of facts, yet it came out with a different conclusion. This is not unusual. Motions and appeals for reconsideration are routinely filed in the courts in the hope that some aspects of the law or of the facts that might have been overlooked could, if revisited, produce a different decision. This is what legal scholars spend time analyzing. A sociological observer’s interest might, in contrast, be in the broader social and political context in which judicial opinions are formed and reviewed.

As a citizen, I take the constitution seriously.  But as a sociologist, I do not start from the belief that the constitution serves as the one true check on political arbitrariness. To say this is not to diminish the value of constitutions as instruments for defending democracy. It is only to remind ourselves that constitutions do not have their own armies. I share the German sociologist Niklas Luhmann’s fascinating insight that constitutions “make invisible the fact that the real limitations on the sovereignty of political systems are power struggles and the strategic calculations of political elites.”

But, constitutions begin to weigh heavily in the power struggles and strategic calculations of political elites when the legal system is able to free itself from the “direct influences of politics or other social powers.” Looking at our own experience, we cannot say at this point that we have an independent judiciary. Indeed, we can’t even claim that we have a clear and stable separation of powers between the legislature and the executive, or between the political branches and the constitutional bodies. But perhaps we are getting there sooner than we think, despite the attempts to control the judiciary through the strategic appointment of “friendly” justices.

Something is definitely changing in the way we run our society. The impulse for change is coming from many directions. We cannot, for one, underestimate the loud and persistent clamor for transparency and accountability that is coming from the new movements empowered by social media. To me, this is what compelled the issuance of the two landmark rulings on the PDAF and the DAP.

A view of political change as largely unplanned rather than preordained is sobering. Consider this: P-Noy was elected to the presidency on the strength of a moral surge unleashed by the death of his much-admired mother. On his first day in office, he saw that a Supreme Court headed by the midnight appointee of his corrupt predecessor could pose a big problem to his administration, and he resolved to use his moral capital to remove him. But, he could not move without getting the cooperation of Congress. Given the premodern state of our politics, he had to play the game of patronage. This paradox is mirrored in the lawmakers’ augmented PDAF.

But, more to the point, P-Noy’s active campaign to impeach the sitting chief justice, and his choice of a relatively junior justice as replacement, probably worked as an incitement for the high court’s members to fiercely assert their independence. As dark as the provenance of these events may seem, they have brought us forward in our march to political maturity.

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