On the rule of law

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

One comment commonly known is that "all politics is local." Apparently, some politics are more local than others. The reason I got reminded of such is when I was pondering on the meaning of "sovereignty," which people bandy about without really knowing what it means. Sovereignty, nevertheless, is opaque enough a concept so as to allow anybody use of it with minimal fear of being told that the use was in error. Now whether the same can be said for the concept the "rule of law" is something that needs determining.

Vice-President Jojo Binay gave a very good, quite thoughtful speech, last March 2 at the Philippine Trial Lawyers Association’s 34th anniversary celebration. In it, he talked of the fact that "as everyone knows we have become a nation of lawyers. We have one of the highest populations of lawyers, of any country, on a per capita basis. And they have various fields of specialization. But among the lawyers who have earned the highest praise of the public and their peers, three basic categories stand out -- the learned judge or jurist whose decisions have enriched jurisprudence, the writer of books whose work has enlarged the breadth and depth of legal scholarship and has contributed to promoting the law as literature, and the skilled trial lawyer who has made courtroom trial a joy to behold, and whose victories are legend."

The foregoing incidentally reminded me of Senator Juan Ponce Enrile, whose work habits (as recounted by writer Bibeth Orteza) are worth emulating: "He really should sleep early but just the other day, he didn’t hit the sack until 4 a.m., he says. His bedtime varies, depending on the amount of reading he feels he has to do because, he says, he has to study and weigh things as well as he can."

But I have to say, that with regard to the application of the rule of law, one need not have the brilliance or discipline of Senator Enrile. As Vice-President Binay correctly points out, that the rule of law must be applied is "plain even to our common people, not to lawyers alone." This is so because we "cannot depart from due process and the rule of law without renouncing our constitution. The impeachment process should be first and foremost an exercise in the rule of law, never a way of bending the law, or asserting the false supremacy of one branch of government over another, or putting one branch in conflict with another."

The question then to pose is: 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 present national character: the need to abide by a standard and the discipline to enforce that standard.

But the dilemma also stems from a lack of a workable definition of rule of law that fits our qualities. While definitely not succumbing to the lures of relativism, nevertheless, clearly 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. But the same would be true if we randomly pick any strongly identified Asian norm and see how Western countries match up. The findings would most likely be unsurprising.

In any event, there is a need for a more sincere and considered Philippine definition of the rule of law. We simply can’t proceed with our insane insistence of deciding issues depending on whether the players come from a particular family or school. As Vice-President Binay points out (again correctly): "Even in a democracy, the threats to justice and freedom are never permanently subjugated. They could arise, even when least expected, not necessarily from the usually predictable sources, but even from sources that are supposed to protect and defend justice and freedom."

Which brings me to an incident in A Man For All Seasons. When Roper proudly proclaims that he would "cut down every law in England" to go after the Devil, More responds: "Oh? And when the last law was down, and the Devil turned round on you -- where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast -- man’s laws, not God’s -- and if you cut them down -- and you’re just the man to do it -- d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake."

Which then leads me to paraphrase a line from Justice Abad’s marvelous concurring opinion in Arroyo vs. De Lima (serving as an effectively sane counterpoint to Justice Sereno’s dissenting opinion): if we can’t uphold the rule of law, "we might as well close down business."