Monday, May 28, 2007

The rule of the minorities

In political life in general, there are as many individuals or groups of individuals doing their best to transform our political habits, practices and institutions as there are others at the opposite end trying equally hard to conserve those habits, practices and institutions.

Radicals in this contest are seen as impatient with snail-paced reforms that leave behind their tracks a great mass of distressed losers. Conservatives, on the other hand, content with trickle-down progress, are regarded as reverential to certain time-honored values and traditional authorities that are deemed to serve well the existing order and a few winners who benefit most from it. In the face however of the perceived failure to justify the perpetuation of the system in place, drastic measures would be attempted paving the way in the process for the ideology of revolutionary transformation. For instance, feudalism or the old economy based on slaveholding, having lost its reason for being, has given way to industrial capitalism, and then capitalism itself, in need of reforms, has been subjected to serious challenge mounted by rival ideologies such as Marxism and socialism.

In 1989, conservative thinker Francis Fukuyama, in The End of History?, dared to claim that the big question has been settled with the supposed triumph of “liberal democracy” which he hailed as the “end point of mankind’s ideological evolution” and the “final form of human government”; and that if at all flaws in that triumphant ideology might still be extant, they were rather due to “incomplete implementation” than “in the principles themselves.”

Ideologies are secular (not religious) beliefs in the abilities of man to establish the good society on earth. In the Western world, whether the good society for the greatest number would come in spurts or trickle is driven by the claims of two competing ideologies, one promotes the preservation of allegiances to established order and the other advocates the rupture of bonds from such order, or the values, thoughts and institutions that support it; yet both of which are all the same based on liberal democracy.

There is historical basis in the contention that liberalism grew out of the friction between government and business, with the latter asserting freedom from interference by the former. It was in that sense a negative liberty (freedom from), which insists further on continued protection by the government of such liberty so recognized. Therefore, the progenitor of modern liberalism is economic (or market) liberalism.

Before the emerging power of the merchants and manufacturers sought privileges against restraints, it had always befallen upon the government to provide for the well-being of the nation and its people and toward that end direct and control the national economy. Then, Adam Smith wrote a convincing treatise to reinvent the wheel, arguing instead for a self-regulating economy where the efficient producers of goods and services in free competition are supposed to outsell the less efficient ones and consumers as a result get better products for their bucks than when government interferes with such freedom. Smith’s postulate was the early beginning of laissez-faire economics and inter-national trade.

Democracy on the other hand is about the assumption by the people of the responsibilities of government. It is in a sense an aspect of positive liberty, of self-determination or the realization of the individual’s fullest potential. Political participation is a solemn exercise of this liberty.

Unfortunately, a large population is often too raucous to make decisive action. Democratic governance would then require the initiative of an organized group or the commitment of an elite citizenry to run the government in the name of the people. The growing complexity of modern life has also reduced the expression of political sovereignty to the practical requirement of government by representation. When the undercurrent of elitist democracy converges with the rush of economic liberalism to make up the ideology of market democracy, there is the peril that the blend could end up only in the protection and maintenance, constitutionally or otherwise, of rights and rents already vested (in those who may have attained “market power”) and deference to old habits and modes of thinking rather than in experimentation and innovation with a view to the substantive distribution of opportunities to the impoverished majority desperately aspiring to secure them, or at least the safeguard against invasion of basic rights.

In the Philippines, immediately following the May 2007 mid-term elections, Malacañang Palace has lost no time to enlist the succor of the Filipino Chinese Chambers of Commerce and Industry (or certain high-profile representatives of what Yale Law School professor, author and Chinese Filipino Amy Chua prefers to call as the market-dominant minority) in an effort to tamper with what appears to be the harsh verdict of the elections. A Philippine Inquirer editorial has taken note of the following:
Early signs aren’t promising. The President sat down with members of the Federation of Chinese-Filipino Chambers of Commerce and Industry, and her Trade and Industry Secretary Peter Favila asked them to pass on a patronizing message to incoming senators. “It’s like fathers telling their children: ‘I’ve given you your allowance because I wanted you to do these things. Now if you don’t do them, you won’t have an allowance,’” Favila said. He hinted further: “They could say, ‘We don’t need (politicking) now. The elections are over. The people have spoken and we should accept the results. Let’s get our act together for our country’s future.’”
Indeed, democracy is threatened at any time political equality is violated (such as when the vote assigned to each particle of sovereignty is not properly counted or valued) just as in instances where political sovereignty is disregarded (such as when the will of the majority is adulterated or simply set aside post-elections through logrolling, cronyism, patronage and other political rent-seeking activities). In fact, there is as much failure of democracy when ordinary citizens lose the power of effective control over leaders resulting in utter lack of public accountability, as there is market failure when market-dominant minority engages in predatory market behavior because of unrestrained market power.

The observation that political elites are oftentimes helpless against well-entrenched economic elites who normally come out unscathed and blameless in the power play somehow dovetails with Amy Chua’s observation that fair, honest and democratic elections bring to power anti-market forces. Chua explains the polarity this way: “Markets concentrate wealth, often spectacular wealth, in the hands of the market-dominant minority, while democracy increases the political power of the impoverished majority.”

A couple of years ago at PCIJ blogsite, I posted the following historical analysis in reply to another post:
Well, then, as now, there was however a class conflict among the players, and to simplify, I will call the conflict as only between the middle-class (or the ilustrados) and the plebeians, the former preferring to just institute reforms within the existing Public, the latter being intent to form a new Public.

To create a new Public, or a State (or to upgrade civil society to an uppercased Civil Society or People Power), Rizal provided alternatives through Noli and Fili: Reform or Revolution.

To succeed in either alternative, the key ingredients Rizal indicated were a) patriotism, and b) self-abnegation.

Ibarra was the epitome of patriotism (the building of a school house in Noli was symbolic of his passionate stewardship to liberate the primitivized indio youth, the “hope of the fatherland”) and Elias, of self-abnegation. Indeed, without both virtues, civil society would remain in lowercase, meaning inchoate and unorganized and therefore would be unable to grow or collectivize into Civil Society (the uppercase).

The persona of Ibarra and Elias was merged in the martyred Rizal, and for a while effaced the class conflict between the ilustrados and the plebeians. The cultured and the unlettered saw a common enemy – the Friar system. But revolution as a means to attain a new Public failed primarily because self-interest (thirst for power) in Aguinaldo had prevailed over the greater good when he ordered the execution of Bonifacio (and later Luna) and dissipated the initial momentum of the revolution before the Americans had a chance to beguile the Filipinos.

As a leader, Aguinaldo failed to separate private interest from public interest. Also, while Aguinaldo was a patriot, he apparently lacked the self-abnegation of Elias and Rizal.

At the turn of the century, associated action powered by shared interests, born out of the patriotism, self-abnegation and a sense of the public of, and championed by, the civil society of the old was thereupon befuddled by the promise of the “enduring truths” of market and democracy peddled by the new Master. On top of it, the Friar system was in fact re-instituted to Christianize (how often could this happen?) and civilize the “half-devil and half-child” in the Hollywood but more virulent form, thereby perpetuating the indio myth. As a consequence, civil society has had to struggle painfully to arise from a damaged ego.

Meanwhile, a self-content and laggard oligarchy, under the backseat patriarchy of Big Uncle and its many instruments, has taken the initiative from a civil society entrapped and enthralled in its lowercased cast.

Arguably, the Philippine Revolution had preceded Rizal and company in the same way that EDSA I preceded the murder at the tarmac. But just as the execution of Rizal had galvanized the full conception of the real enemy and whereupon the fusion of interests across class lines, the murder of Ninoy led to the coalition of the Left and the Right, the bankers and the farmers, the teachers and the learners, and the clergy and the faithfuls against a common enemy upon the realization that under the conjugal dictatorship no one was really safe. Unfortunately, the people power “rebels” failed to form a new Public based on shared interests, not because they were not collectivized, but simply that they were collectivized only for a limited goal – to oust a dictator. It was then a short-lived break from pubescence or inchoateness. If at all, the public formed under the People Power Constitution of 1987 was based for all practical purposes on the inherited agencies of the old form.

Beyond any doubt, the struggle is far from over. It’s been a continuing one however, perhaps from way back or even before Gomburza. The nemesis remains potent and school houses are needed to be built, as Ibarra did, to uncover in Gramscian formulation the conspiracy of the unliberated mind.

The immediate challenge for civil society today, it seems, is how to internalize the true embodiment of the real enemy. Today, to make GMA face justice is an immediate goal. But the vision for the Civil Society has yet to be fully instantiated. To do so, civil society must be able to assert its primacy and thereupon form a new Public based upon Rizal’s recipe: a mix of patriotism and self-abnegation. If successful, the process has to be kept experimental. It has to be so, because the making and re-making of the Public ought not to be inflexible.
The result of the last elections in the Philippines may have produced certain revolutionary symbolism in the persona of accused and detained mutineer Sonny Trillanes who if elected a senator has promised to shatter money and patronage politics but, echoing a conservative ideological line, “not to reinvent the wheel” or, ironically, of catholic priest-turned governor-elect Fr. Ed Panlilio whose religious hierarchy, the traditional citadel of conservatism, frets about free trade and globalization, and considers the market a tyrant. The same result could also be interpreted as indicative of wider fissures in the system in place that might have been glossed over lately. One discernible systemic crack may be attributable to the re-emergence of active, organized and intense minorities willing and able to serve as countervailing force against the various powers that support the existing state of affairs. For instance, besides the reorganized and improved National Citizens’ Movement for Free Elections (Namfrel), volunteer election watchdogs have proliferated such as the Parish Pastoral Council for Responsible Voting (PPCRV), Bantay Eleksyon (BE), Legal Network for Truthful Elections (Lente), Bantay Boto, No Cheats, Kontra Daya and Halalang Marangal (Halal) that all have zealously guarded the electoral process. Ricky Carandang observes that “with so many people watching over the vote, it’s not as easy as it used to be (to steal the election).”

“In a true democracy,” I have also written, “the people (the multitude) and the minority (the oligarchy) do not rule; the minorities (civil societies) do.”

Saturday, May 12, 2007

A solemn obligation of citizenship

Reacting to the “Brawner Doctrine” by virtue of which the votes of two commisioners of the Special First Division of COMELEC have nullified the majority’s will in the election of Naga City Mayor Jesse Robredo (who is at the end of his fifth term as mayor of the city and is running for his sixth in the May 14 elections) conveniently by ousting the mayor in a quo wrranto proceedings on a highly controversial citizenship question), FEU constitutional law professor Edwin Lacierda could not hold the stinging wallop of his analysis:
What is unfair in the decision is that (Commissioner) Brawner attacked the citizenship of Jesse’s grandfather who will never have the chance to rise from the dead and defend himself. And in fact, the Supreme Court said in a Co versus HRET, a case cited by Brawner himself, that you cannot attack the citizenship of a father just to get back at the son. This should be done in a direct action to nullify the citizenship of the father. In this case, Brawner should not entertain an attack on the citizenship of the grandfather just to get back at the grandson. Brawner knows the case, skips that particular part of the case and conveniently said that the Co case is totally not applicable to Jesse’s case.

That is the paternal line of Jesse which Brawner attacked and which I have shown why Brawner’s attack was ill conceived, deficient in research and totally unfair and disrespectful of the dead Lim Teng who in one swift stroke by Brawner was stripped posthumously of his Filipino citizenship.

Not satisfied with the paternal line, Brawner proceeded to destroy the maternal line as well. He said that Jesse who was born of a Filipino mother did not elect Philippine citizenship as provided by CA No. 625 which requires a person to execute a statement of an oath of allegiance to the Philippines and filed before the local civil registry. Brawner said that voting in an election or running for public office does not qualify because there is a procedure for election. I think that is a very restrictive interpretation of what election means. Brawner cites the case of Co v. HRET as basis for saying that implied election does not apply to non-Filipino like Jesse.

The present understanding in electing citizenship is that one has to elect in accordance with CA No. 625. I think the Supreme Court would have to revisit that jurisprudence because what better way to show your oath of allegiance to the Republic of the Philippines than to vote in an election or run for public office. Moreover, there is no definitive ruling from the court that CA No. 625 and implied election of Philippine citizenship such as voting in an election are mutually exclusive of each other.

The Supreme Court has mentioned that our citizenship laws are antiquated. I think now is the time to test our ideas on what constitute citizenship. Brawner was too quick to point out the absence of proofs forgetting the fact the evidences are nearly a century old and may no longer be extant. He also forgets the fact that their own Comelec building just burned down and the evidences have been destroyed. If a recent fire gutted down their building destroying all evidence, is it not fair to say that Brawner is being unreasonable to demand proof of documents a century old?
In an email to me on the same subject, Ric Marasigan, a US lawyer and also a Bicolano, has bewailed the “culture of impunity” that has attended the Philippine officialdom as well as the outdated notion of Philippine citizenship over against a culture of assimilation and diversity among successful and progressive nations:
This is but another manifestation of the “culture of impunity” that characterizes the Philippine government and its officialdom. This culture ignores all appeals and calls for legality, decency, morality and even invocation of basic Christian values. That is why “other” Filipinos are calling for radical measures to effect fundamental change and reform in the Philippines which is unfortunate. This latest episode is a shameless dismissal of the role, place and contributions of the Chinese ethnic element in what constitutes the Filipino nation today. All for the exigencies, whims and caprices of petty politics and petty people in Naga City and Camarines Sur! Rizal, Aguinaldo, Osmena, Aquino, and all Filipinos of Chinese descent must be shaking their heads in disbelief and rage. Some of the mightiest and richest nations in the world today welcome and encourage immigration and ethnic assimilation like the US and Singapore. Even the newly-elected President of France is a Frenchman of Hungarian descent.
When the camp of Gloria Macapagal-Arroyo had employed the same dirty tactic (not to mention other serious allegations of election chicaneries) against her leading opponent, Fernando Poe, Jr., in the last presidential election, my own reaction was anchored on sovereignty grounds and similarly on the continuing transformation of Filipino citizenship:
If there is anything certain about the controversy involving the citizenship of presidential frontrunner Fernando Poe, Jr., it is the fact that the historical process of transformation of the Filipino citizenship is still in a state of flux. Only recently, the dual concept of citizenship has been legislated not so much upon the emotional requirement of allegiance as on the practical imperatives of economics. This continuing formulation and debate are also a reflection from the wavering, inconsistent and back-and-forth positions taken by the Supreme Court in its earlier rulings—from Roa vs Collector of Customs(1912), Chua vs. Secretary of Labor (1939), Torres vs. Tan Chim (1940), to Tan Chong vs. Secretary of Labor (1947), and Talaroc vs. Uy (1952)—as to which citizenship criterion to rely on, whether the principle of jus sanguinis (citizenship based on blood) or jus soli (citizenship based on place of birth). On the basis of those shaky, if often clashing, judicial holdings, the Court’s readings of the constitutional requirements, circumscribed by the predilections of the individual justices, are not the most comforting place to go to for some intellectual conception of citizenship.

The other thing clear and certain on the question of FPJ’s citizenship is the language of the Constitution itself. Indeed, the constitutional requirements for Philippine citizenship are unmistakably plain and simple to be subjected anew to the reviewing itch of the Justices of the Supreme Court. Article IV, Section 1, (2) of the Constitution defines as citizens of the Philippines “Those whose fathers or mothers* are citizens of the Philippines.” And if, according to the Constitution, they are such citizens of the Philippines “from birth without having to perform any act to acquire or perfect their Philippine citizenship,” they are “natural-born citizens.” It cannot be any plainer and simpler than that. xxx

Citizenship, like religion, is more than an accidental birthright. It can only be taken for granted in innocence. Upon the attainment of the full consciousness of membership, what is inaugurated as a right of the natural person, to borrow from the political thoughts of Rousseau, is in fact transformed into a solemn duty of the citizen. This affirms the truism that membership in the community precedes citizenship in the polity. As a consequence of membership, citizenship goes well beyond definitional technicalities, constitutional or otherwise, as well as any judicial opinions interpreting those definitions. Before the formalities of conferment, citizenship must first be attained.

Hence, for example, one is only as much a Filipino citizen in name simply because the Constitution or the law defines him to be so, as another is a Roman catholic only in name simply because he was baptized in innocence as a Roman catholic. Citizenship, just as religion, demands devoutness. It is a solemn obligation of service more than a definitional right or a privilege.

Arguably, the First Filipino was Jose Rizal. He did not earn his citizenship by constitutional fiat because he had preceded the Constitution. By definition, he could have not been considered a citizen at all, having remained allegiant to Spain until his death. Rizal, a Chinese by direct ancestry, attained citizenship not by parchment but by historical relationship, and by duty and deed. Rizal, like Ninoy Aquino, identified with his intellect and wisdom as a citizen rather than with the desire for power, wealth or personal safety. And both decided to return to their community from exile against the counsel that impending danger awaited their arrival. Rizal and Ninoy Aquino died in a state of virtue as political animals—the original Aristotelian conception of a citizen as someone owing his labor and loyalty to the polity—not knowing whether their individual sacrifices would attain the goals they had hoped for.

Obviously, to draw in this current controversy any undue or unnecessary parallelism from the self-abnegation of Rizal and Aquino would be farfetched. But still, it is not easy for anyone not close enough to the popular movie actor to determine what motivations had obliged someone like FPJ with no experience, as others claim, about the intricacies, pitfalls or rewards of political governance, when finally he acceded to the importuning of people around him to run for president. Certainly many would be at a loss wondering why FPJ, already powerful, wealthy and personally secured, would sacrifice those hard-earned securities and his relatively private life for reasons other than possibly to give his labor and loyalty to the only country he has known, which made him powerful, wealthy and secured—however weird, hyperbolic or unrealistic those reasons, aspirations or motivations might be.

I am not particularly enamored with the change alternative so far bared by the FPJ campaign, or by the opportunities offered by the other presidential aspirants as they present their challenge to the incumbent. Neither am I excited at all with the business-as-usual approach the administration of Macapagal-Arroyo is pursuing to confront the long-standing scourge of elite democracy that has tormented the nation and the Filipino people. But I believe it is the quest of FPJ for the presidency, more than the ambition of the other candidates, which is rewriting again the people’s narrative of People Power Democracy.

In the last analysis, the resolution of the question involving the aspiration of FPJ for the highest office of the land is a sovereign matter the Supreme Court cannot preempt to pass upon. It is of no moment if the ancestry of the aspirant may be foreign as long as his qualifications clearly are in compliance, as above explained, with the unequivocal language of the Constitution, all the possible follies and other consequences thinkable attendant to such a political pursuit notwithstanding.

If the people vote for FPJ as their next leader, so be it. If not, that also is their final say, not the Supreme Court’s.**
By the very same weight and force of reason, the sovereign majority in the City of Naga, not the shameless illogic of two COMELEC commissioners bordering on impeachable offense, should have the final say as to who should serve or will serve the Nagueños as the City’s mayor.

Protecting and preserving the sovereign will in the May 14, 2007 elections is in fact the solemn obligation of all Filipinos who deserve the privilege of citizenship.


* This provision is a constitutional recognition of the critical role of the mother in inculcating the virtues of citizenship in the child.

**In Tecson v. COMELEC (March 2004), the Supreme Court has ruled against the petitions to disqualify FPJ and in effect held that even a “bastard” could run for president; the rest is history.

Saturday, May 05, 2007

Rule of law and representation

The other day, I finally completed my absentee ballot and promptly mailed it. In my conscience I know I have voted for the “rule of law” and against illegitimacy.

At mlq3’s blog, the following comment of rego has caught my attention in relation to my vote:
. . . with the absence of witnesses and evidences, (former Comelec Commissioner Garcillano of the Garci tapes fame) just can not be convicted. Even (First Gentleman) Mike Arroyo with all the allegations of corruption can not really be convicted . . . And all the accusers should just stop talking but really work hard on gathering solid evidence against him.
Yet, who should “work hard on gathering solid evidence against” the likes of Garci, Jocjoc Bolante, or on such serious matters as the extra-judicial killings of journalists and militant opposition, or the new exposé on the “PNCC Radstock deal” that all appear to involve acts or omissions of public officials, employees, offices or agencies”?

The Philippine Constitution is clear on how the rule of law should be enforced in this regard.

Article XI, Section 13 (1) provides that the Office of the Ombudsman shall have, among others, the powers, functions, and duties to “investigate on its own” any act or omission of any public official, employee, office or agency, “when such act or omission appears to be illegal, unjust, improper, or inefficient.”

Remember for instance that in the Info Tech case, Ombudsman Merceditas Gutierrez shirked her above duty even as she ignored the findings of the Supreme Court citing, among other things, the “reckless disregard of (Comelec’s) own bidding rules and procedure” in the case “in clear violation of law and jurisprudence”; instead, her office absolved the Comelec officials led by Chairman Benjamin Abalos from the anomalous P1.3 billion poll automation contract with Mega Pacific?

Ombudsman Merceditas Gutierrez, whose constitutional office has yet to prove as a pillar in the pursuit of the rule of law, was willing to shame her authority both as the Ombudsman and as an officer of the court by feigning an unconventional definition of probable cause in the Info Tech case in the same callous manner the House in the impeachment cases has dealt with the “Garci tapes.”

The egregious nonfeasance of Ombudsman Gutierrez is a distressing contrast with the spirited quest of the rule of law by US Special Prosecutor Patrick Fitzgerald against high-level White House adviser Scooter Libby. Fitzgerald’s tenacity resulted in Libby’s conviction for obstructing justice and lying to FBI agents then investigating the leak of CIA operative Valerie Plame’s identity.

Libby now faces up to 25 years in prison. On the other hand, Garcillano, let off scot-free, is today seeking, quite tauntingly, a congressional seat while those Comelec officials whom the Supreme Court has found to have violated the law and jurisprudence remain at the helm of a critical electoral exercise for the survival of the polity.

Rule of law and legitimate representation are of the essence of republicanism. Without one or the other, there is failure of democracy.

Have Merci and Garci (and, oh well, Cheni) on US.