The rule of law

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

Everybody talks about the need for the rule of law. But I doubt if anyone actually understands what it means. And if people do begin to realize the implications of the rule of law then would they still want to have it? Because, in the end, the rule of law simply represents two things that seem to contradict the national character: the need to abide by a standard and the discipline to enforce that standard.

Whether this could be had is, frankly, doubtful. When you have our own head of state wanting to teach our public prosecutors how to shoot their way out of troubles or when a public official down South is publicly lauded for his brand of vigilante justice, the problem is obvious. Indeed, the intentions of the two afore-cited examples may be laudable, but, as they say, the road to hell is paved, gilded, and furnished with good intentions.

The dilemma, however, also comes down to the proper definition of what the "rule of law" is. Clearly, any person with half a brain who managed to finagle funding from his rich family for foreign schooling could pick up a foreign textbook and say that the rule of law is: "a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards."

That definition is from a former secretary-general of the United Nations. The question now is: how appropriate is that definition for the Philippines, with its Asian context, multiple invaded and colonized background, and strange amalgam of democratic and personalistic/paternalistic type of politics? However, it would be quite sloppy to immediately come to the conclusion that compliance with the rule of law is weak in this part of the world. Wikipedia itself is evidence for and source of this type of analysis. A member of the Asian Human Rights Commission, for example, was quoted regarding his assessment on the "weak or nonexistent" application of the rule of law in Asia.

But if one applies Western standards on a culture that is removed from the same, the probability of Asian countries falling short on the matter is obvious. As an intellectual exercise, it would be quite interesting to pick at random any strongly identified Asian norm and see how Western countries match up. The findings would most likely be unsurprising.

The subjectivity or bias with regard to adopting the most appropriate definition of the rule of law can be seen with regard to the reception of Lord Bingham’s famous discussion on the same. According to Lord Bingham (who wrote a widely received book on the subject and who died last year), the rule of law should contain the following features: "[1] the law must be accessible and so far as possible intelligible, clear and predictable; [2] questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion; [3] the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation; [4] the law must afford adequate protection of fundamental human rights; [5] means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve; [6] ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers; [7] adjudicative procedures provided by the state should be fair; [8] compliance by the state with its obligations in international law."

Admittedly, Lord Bingham is a brilliant jurist, but how much of the receptivity to his ideas stem from his objection to the invasion of Iraq? Frankly, my objection to Lord Bingham’s thesis precisely stems from the eighth feature, particularly as it fails to appreciate the ambiguous and fluid nature of international law. This point becomes all the more apparent when one sees how much of the international law on human rights is based on "soft" (as opposed to "hard") law.

In any event, the need for a more sincere and considered Philippine definition of the rule of law is certain. The capacity and willingness to enforce that definition should be internalized as well. Otherwise, let’s just stop fooling ourselves that we long for a society based on the rule of law when, in the end, our manner of deliberating and deciding issues depends on whether you come from a particular family or school. Obviously, that system has damaged the country but at least let’s accept that we’d rather really want it that way. It’s less hypocritical and doesn’t waste anybody’s time of having people go through the charade that the law (and learning about it) is important.