Misrule by law

What a wonderful phrase, this “rule of law”! Uttered like a spell, it makes people swoon to ideals of equality, fairness, and justice. Alas, it is a most tricky set of words, laden with fraught history and meaning and susceptible to treacherous generalization.

Indeed, the rule of law admits to a highly technical definition. It is a term of art for governance and legal professionals. The rule of law is a principle of governance in which all persons and institutions, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. That seems straightforward enough.

It basically requires adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, the separation of powers, participation in decision-making, avoidance of arbitrariness, and observance of transparency. This is set forth in the principal law agency of the government, the Department of Justice.

To us lay people, rule of law means two things: One, that the laws apply to everyone without exception, and two, the treatment by the law is the same for everyone, that it is fair.

It is easy to mouth, but much harder to implement. The question that is not asked is: What if the law itself is bad? Governments, whether democratic or authoritarian, cite the same principle, and yet legislation can be passed that is biased or targeted. Such laws are wrong and go against the true meaning of the rule of law.

Citing or using the law in such situations results to more harm. It is a crude but simple way to exercise and abuse power. In this sense, it is the monopoly of the state power to compel and to coerce. Witness the many instances both here and abroad when law is used as the basis to incarcerate dissidents, or to justify an irregular government action. All it has to do is to pass a law as legal cover.

Rule of law is nominally observed, but in reality, it is “misrule by law.” In the era of captured legislative bodies influenced by big business, or keen to perpetrate dynasties, or join the party bandwagon, the law becomes an instrument of control against those in the crosshairs of their interests, whether in government or in the private sector.

For aspirants to public office, it is an imperative to study and understand the full extent of the meaning and practice of the rule of law to be able to observe it should their tenure come to pass. For it is unthinkable for modern societies to think of living without the rule of law. Imagine the chaos and anarchy. Indeed, the foundation of how we live today is determined by how the rule of law promotes and protects our essential freedoms.

The Philippines experiences both rule of law and misrule by law in many respects. We have a written Constitution that is full of errors we cannot correct. The number of laws and ordinances continue to grow exponentially year after year, adding to complexity and uncertainty instead of simplicity and clarity in governance.

The solutions are straightforward but difficult. For the Constitution to work, we need a set of committed and disinterested leaders that can galvanize all of us to agree to be governed by a living document. We are tying our hands and shooting our feet as other countries continue to improve and innovate their legal systems.

Congress must exert one solid effort to index and codify the disparate and fragmented laws that are passed without a plan or design. Simple and fast if done correctly and well, this action will immensely and immediately contribute to the citizen’s welfare and the country’s development.

We must all be watchful of laws and regulations that are driven by interest groups or are poorly crafted. The rule of law cannot be realized by inaction, incompetence, or ignorance by those who govern, especially the legislators.

We know and acknowledge that the only way to meet our ideals of living life in a functioning democracy requires deliberate thought and appropriate effort to change things for the better, starting with the rule of law. Our individual and collective failure to do since the founding of the Republic has brought us to our current state of affairs. As another election year fast approaches, it’s a reminder and a call that adherence to the most basic notion of the rule of law, not its misuse or abuse, must be a cornerstone of any platform of government. How candidates comport with fairness and equality in their daily lives should be a barometer of their fitness for office.

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Geronimo L. Sy is a former assistant secretary of the Department of Justice.