The Constitutional Comfort for Impunity

Dr. Fabella is a professor and former dean of the UP School of Economics. This article was published in the March 10, 2008 edition of the Business World, pages S1/1 and S1/2.

A constitution is nothing if not a bulwark against abuse of power by the duly constituted authority. The grandmother of all written constitutions, the Magna Charta, was a list of 63 proscriptions on the previously absolute powers of the monarchy. King John was forced by a concert of English barons armed to the teeth to sign and issue the proclamation at Runnymede in 1215 in return for their cessation of belligerence. Among the provisions imposed upon the king were the right of freemen to be judged by their own peers, the power to tax being vested on the council of the kingdom and the council of the kingdom to include barons, clergymen and burghers. Accountability was ensured by the willingness of the barons to bear arms in its defense. This made England less a regal than a legal state, one where the power of the purse and the power of adjudication are alienated from executive power. John Locke and Baron de Montesquieu were anticipated by centuries.

The Magna Charta supplanted the long-standing but largely unwritten constitution embodied in tradition and founded on “the divine right of kings.”  This political ecology, pyloned on accepted mores and theology, included the accident of birth as the source of royal legitimacy flowing from the Godhead who then serves as the ultimate guarantor of fidelity and accountability. King John however discovered to his glee that he could breach with increasing impunity the traditional boundaries of acceptable monarchical malfeasance. The heavens did not open up and the lightning did not strike after each foray into the uncharted territory of roguery. Instead, every breach unpunished served as a convenient stepping-stone towards deeper excursions. The concert of barons finding neither solace nor reprieve from God’s wrath as it were, decided that accountability must be spelled out in the only language King John and his similarly disposed progeny would understand: armed popular resistance. Their final and only fallback was themselves! Confronted with this resolve, King John ended up, rather than deposed, defanged.

Although the constitutional project witnessed a colorful career of reversal and rebirth throughout subsequent English history, the Magna Charta’s twin fundamental principle of ”consent of the governed” and of “ultimate accountability by armed resistance” always served as a compass that kept the march on course. Charles I, repeatedly testing the second of  the twin principle, reawakened the spectre of Runnymede and lost his head to the executioner’s ax in 1648.

A constitution is only as valuable as the protection from abuse of authority that it accords the citizens. Such protection is the raisson d’etre of the various avenues of accountability that it provides. Plug such avenues and the constitution is dead. Worse, its carrion may serve as poison to the polity. The 1987 Constitution provided for accountability through the checks and balance inherent in the Lockean separation of powers among three co-equal and independent branches of government. The legitimacy of the Executive’s prerogative to enforce duly legislated laws derives from the consent of the governed expressed via the ballot. So does the legitimacy of each member of the Legislative upon which is vested the power to enact laws. The independence of the Legislative draws from the legitimacy of its members and from its vested power of the purse. It is the ballot that makes political power contestable and ultimately accountable.

Short of the ballot, the Executive can be made to account for its actions by the Legislative through is constitutional power to impeach; so can the Executive and the Legislative be thwarted by the Judiciary’s power to decide on the legality or constitutionality of executive actions or legislative enactments once challenged in its courts. The independence of the Judiciary derives from the integrity of the men and women appointed by the Executive to the bench. Any breach in the system will ultimately be punished by the ballot. Constitutional democracy’s allure is its simplicity and its affirmation of the citizen which explains the vehemence with which extra-constitutional remedies are condemned by well-meaning folks who style themselves defenders of the rule of law.

Well and good on paper. In reality, the law of unintended consequences can kick in rendering the allure messed up and a  victim of the clever machinations of ambitious men and women. One obvious soft underbelly of this simplicity: the ballot can be stolen! (Wasn’t the “Garci tapes” controversy all about stolen ballots?).

Consider the following hypothetical scenario: Suppose the ballot was stolen and the perpetrator is the chief law enforcer of the land, the Executive. It is a priori unconstitutional and must be removed. By whom? The Legislative? The Executive’s hold on power can be maintained if the Legislative is neutered. The independence of the Legislative hinges on an effective number willing to buck the Executive thus foregoing the largesse of the envelope or paperbag and risking the electoral discomfort of the pork barrel’s non-release. The blandishments of cash and the power it buys can be too much to resist for most. Instead of the constitutional power of the purse which is its constitutional prerogative, the Legislative will in exchange for cash exercise the power of the begging bowl. As a body, it can insist on its independence only by boisterous supineness. Accountability by impeachment can be rendered  dead in the water. But it would be perfectly constitutional.

The Executive can also erode the independence of the Judiciary through friendly appointments or impair its effectiveness  by “kidnapping,” “securing,” “neutering,” “demolishing” or “salvaging” evidence and those who know too much. Both together would accord even better guarantees. Evidence-based judgment, the hallmark of an upright Judiciary, cannot prosper without hard evidence. No evidence means innocence! All these meanwhile can be made to look legal and aboveboard by an adept, but most of all amply financed, management of the press.

With a co-opted Legislative, an impaired Judiciary, the constitutional windows are shut. If the top brass of the military can be kept comforted with favors and privileges, the equation is complete. The Executive can afford to immoderate its greed in order to build a war chest that can wither any emergency: top any bid for anybody’s flagging loyalty; procure his/her temporary or permanent silence; secure an opulent temporary or permanent exile for a beleaguered ally. Insiders build an ethical rampart around themselves by subscribing to the belief that all outsiders are virtuous only by default. No one has the biblical right to throw the first stone. In the den of thieves, theft is an oath of loyalty. But where greed is the currency of the land, discord is as natural as sunrise and breaking rank is a contingency to be handled. Any insider who breaks rank is assured of demolition.

With the system of assured demolition for rank breakers tightly in place, the ballot-stealing Executive can confidently hurl the challenge: “Impeach us” or “Sue us”. Indeed since the best defense is an ebullient offense, the bravado can indulge the rapier of sarcasm: “Allow us to start the constitutional challenges: To table an impeachment in Congress; to start an investigation by constitutional bodies.” Marie Antoinette’s “Let them eat cake” is, if more colorful, cut of the same cloth.

In effect, the constitution can be conveniently turned into a cover for a cabal of robbers. Its avenues of accountability can be magically transformed into boulevards of plunder. So impaired and emasculated, it can become a formidable comfort to impunity!

But of course this can be dismissed as no more than a hypothetical scenario. Malacanang’s  problem is that more and more Filipinos, rightly or wrongly,  no longer distinguish between hypothesy and reality. Who can blame them? They have perished the thought that the rule of law is better served by adherence to a constitution that is being used as a cover for impunity. Guilty Erap was constitutionally unconditionally pardoned. As the Darwinians only know too well, when rogues enjoy superior fitness, their tribe will increase and inherit the earth. Whether for outright deposal or for defanging, these Filipinos now believe, rather as did the English barons at Runnymede, that only mounting direct action increasing if it must the risk of extra-constitutional tectonics is the only language Malacanang now understands and which alone can force it to come clean on truth and justice.

Waiting for the 2010 that will be forthwith stolen is “waiting for Godot.”

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