Consent and Liberty of the Governed under the rule of law

By: Dion Ceazar M. Pascua

San Beda College Manila College of Law

EXECUTIVE SUMMARY

     In these centuries of radical changes against colonial rule happening all over the world, classes have also risen, and populist nationalism had begun to rise.  More importantly, the modernization and renewal of legal and government institutions have taken place.

     It’s important to underscore these developments that led to the institutionalization of democratically-made laws.  These laws must always be understood as made in the context and consent of the governed.  While indeed republicanism is the only practicable and modern way to initiate and govern democracy, its main disadvantage lies in its shortcomings in representing the entirety of the governed. 

     But of course, this is understandable, considering that informed consent has become a privilege rather than an absolute right; only some people are capable of participating politically because of their upbringing, education, and social background which enable them to acquire enough knowledge to form a well-grounded belief in politics.

     Let us take this into the Filipino context.  Informed consent and political activity on the part of Filipinos is a societal problem—majority of Filipinos do not know how government works and how it functions to an extent to give them enough to give an informed consent on things. Instead, the same Filipinos have become more focused on their individual lives rather than their lives as relative to the government—as citizens of the Philippines.  And there is nothing wrong with this, actually.  We would rather engage in more pleasant matters than the complexities of politics, drama, and the occasional scandals.  We would rather plough the fields and fish in the oceans to bring bread to the table than engage in discourse that would use too much time that could be used on more important matters. 

     As the old legal maxim goes: ‘your freedom ends where mine begins;’ if there is no respect to other liberties, there wouldn’t be liberty for all.  As citizens we must always recognize the independence of others.  Laws must always be made in consideration of being the middle-ground of liberties among citizens—to construct the limitations of private and personal rights to the benefit of all.  While it cannot be an insurer of liberties, laws must always strive and maximize the protection and the furtherance of rights.  Besides that fact, laws must always be forward-thinking and open-minded, always embracing change, and always inclusive of new concepts.  At the least, laws must reflect verified scientific and rational findings beyond the scope of what has been established and constructed.  In other words, laws must be the exponent of morality and good policy.

     Today, the Philippines is ideally a government of laws, and not of men, as it follows strictly its codes of laws to the letter, owing to its nature as a primarily civil law legal system.  Recent events, particularly pertaining to the widespread proliferation of extrajudicial killings, would show that this isn’t the case, and rights have been greatly miscarried and deprived.  We must never compromise our belief in the laws to the whims of the cries for vengeance, no matter how righteous those calls may be.  Due process is an object of liberty; and liberty is an object of social justice.  Most of all, social justice creates and broadens opportunities and rights for people who will engender a better future for the state.  The laws of the state may not be perfect, and often times, unfair, but an active citizenry will always fulfil the intent and letter of the laws through their unvitiated and informed consent, regardless of the number of persons with self-serving agendas.  The law equally requires our participation and consent to it, as well as demanding us to effect and air out our political concerns and grievances.  We are often daunted with other affairs that concern our personal lives, but we must never forget our roles as citizens of the Republic.

          WE ARE A GOVERNMENT of laws, and not of men, so said John Adams, one of the Founding Fathers of the United States of America. It was during this time that he, with the other Founding Fathers of the US, decided to run against the oppressive British Monarchy of King George the Third, and establish the first ever constitutional democratic republic in the world—the first of its kind.

          The American Revolutionary War is a classic example of a struggle versus foreign colonialism, and, as a result, the US government was born—embodying the principles of democracy, republicanism, separation and delegation of powers, and civil service, that have been developed through history from the birth of the Roman Republic, to the Italian city-states and merchant republics, and to the codification and institutionalization of common law doctrine of the United Kingdom.

          It also brought a new movement—a movement against the old world order of feudalism and aristocracy, which directly inspired the French Revolution and the subsequent Latin American Revolutions against Spain, and eventually, the Philippine Revolution.

          Adams’s quote then on became the hallmark of democratic institutions that followed—men then knew that it was more fair and righteous to create a state of laws than follow the absolute rule of monarchs, dictators and despots. From then on, people have become united under governance of content rather than of absolute rule. As English statesman John Milton once wrote:

“The power of kings and magistrates is nothing else, but what is only derivative, transferred and committed to them in trust from the people, to the common good of them all, in whom the power yet remains fundamentally, and cannot be taken from them, without a violation of their natural birthright.”

          Further into this development, rights have been defined, standardized; lawyers, paralegals and notaries have become more common professions, and societies have been transformed from being societies of serfdom patronage into societies of liberalism and individualism.

          In these centuries of radical changes against colonial rule happening all over the world, class’s havealso raised, and populist nationalism had begun to rise. More importantly, the modernization and renewal of legal and government institutions have taken place.

          It’s important to underscore these developments that led to the institutionalization of democratically-made laws. These laws, the subject and context of today’s studies in law, must always be understood as made in the context and consent of the governed. While indeed republicanism is the only practicable and modern way to initiate and govern democracy, its main disadvantage lies in its shortcomings in representing the entirety of the governed.

A government by consent

          But of course, this is understandable, considering that informed consent has become a privilege rather than an absolute right; only some people are capable of participating politically because of their upbringing, education, and social background which enable them to acquire enough knowledge to form a well-grounded belief in politics. While some are inherently disabled—the differently abled or the mentally disturbed; or, if not inherently disabled, the unwilling—the apolitical, the apathetic, and the misinformed. These are some individuals who are deprived of consent for laws, but are no less than the other governed.

          Let us take this into the Filipino context. Informed consent and political activity on the part of Filipinos is a societal problem—majority of Filipinos do not know how government works and how it functions to an extent to give them enough to give an informed consent on things. This consent is often manifested in voting. Instead, the same Filipinos have becomemore focused on their individual lives rather than their lives as relative to the government—as citizens of the Philippines. And there is nothing wrong with this, actually. We would rather engage in more pleasant matters than the complexities of politics, drama, and the occasional scandals. We would rather plough the fields and fish in the oceans to bring bread to the table than engage in discourse that would use too much time that could be used on more important matters.

          As an agricultural and working people, Filipinos are short-term oriented, or subsistence-oriented, and voting, which should be a fair avenue for Filipinos of every class to vent their political will, becomes an avenue to justify and complement these short-term or subsistence-oriented goals. In other words, politics and governance are viewed only to serve citizens, not as a participatory endeavor.

          This system is especially vulnerable to corruption, which is the case happening in the country. This is also used by people to politicize their platforms, which will easily gain traction on incomplete consent. While again, this is not a problem, it becomes as such when a politician uses this weakness to gain the favor of the electorate without protest, giving him an unbridled leverage on political matters, including using it for his own gain and agendas. As such, consent is vitiated; there is no expression of the fullness of liberty and rights.

          Why is informed consent important? In today’s libertarian and democratic institutions, consent is the main currency of legislation and public service—laws are made with the consent of the people through their delegated and democratically-elected officials. As discussed before, this consent may be vitiated not by choice, but by necessity from societal factors and this weakness may be taken advantage of by self-serving agendas in the bureaucracy. Also, avenues to express political consent are often times not taken seriously by the electorate, who would rather have a political system for their needs not as a citizen of the government, but as a private individual. Laws are made for the benefit of its subjects—the state; but it doesn’t only stop at to create and define the state, but to set the state in its course to betterment and an ideal destination—this is often enshrined in the state’s constitution.

          But what composes of this ‘ideal destination?’ It is understood that modern laws are practicable to an extent that they recognize the inequalities, dilemmas and lacks in society, which the same affirm, and which they aim to reduce or alleviate. Laws are geared towards the achievement of social justice and equity, as well as prosperity, but this concept, as always, is subject to the different factors that constitute the individual’s concept of politics.

Social justice

          The conversation of Socrates with his sophist friends in The Republic by Plato, defined justice as giving what is due and taking what is undue. He then proceeded to trace the origin of justice, which he and his other friends said came out of fear of persecution of the breach social contracts (either widely practiced or verbal) which were borne out of agreement, consent—and that if one breaches these contracts that have been widely agreed upon, it becomes injustice. Socrates also made mention of an ‘ideal city state’ of which ruled by a ‘Philosopher King,’ in contrast to a king who has gained an ‘education.’ Socrates averred that the overwhelming power of the city state has even breached the privacy of normal citizens—that rights are ruthlessly subordinated to serve the state’s (which is ruled by the ‘educated’ king) needs in war.

          You could say that Socrates was the first ever advocate of human rights. During the Italian renaissance, these political views were then reaffirmed in part by Niccolo Machiavelli. Though Machiavelli, a statist, agreed that there is a need for the ruler to further pursue in the arts of civil matters and war, his main argument in The Prince is that the state must survive through any means possible, preferably through a show of force, even to a point of subjecting its constituents to fear. In either case of Machiavelli and Socrates, it was a view on social justice.

          Fast forward to contemporary times, a more modern definition of social justice is the just relation of a private individual to a society, and how that society provides for its individuals the opportunities for them to flourish in their desires and aspirations of the self. According to Plato however, social justice is when an individual, by virtue, fulfils his assigned or inherited role for the benefit of other individuals in a state. If that were the case, then there is no social justice if an individual extricates himself from society and participates only for his own matters. Under this definition, there is no social justice if laws are made without the full consent and consideration of the rights of the governed.

          Hence we see political activism—human rights, environmental rights, racial minorityrights and indigenous peoples’ rights. The beauty in our constitution is that it has enshrined a bill or rights, as with most current constitutions of other sovereign states, it preserves and reserves the rights of the citizen against the deprivation of life, liberty and property.

          Liberty is another object of social justice. Defined as the right to exercise freedom and free will, liberty, in recent times, have been redefined as the right to good and avoid evil. Every law student, in the first phase of his or her study in law school, is given the concept of liberty and how it relates to due process. As it always been, liberty is more of a political right than a natural one, for if one defines liberty through his own terms, without due consideration of other persons with personal liberties as well, there wouldn’t be liberty to begin with.

Liberty to do good and avoid evil

          As the old legal maxim goes: ‘your freedom ends where mine begins;’ if there is no respect to other liberties, there wouldn’t be liberty for all. As citizens we must always recognize the independence of others. Laws must always be made in consideration of being the middle-ground of liberties among citizens—to construct the limitations of private and personal rights to the benefit of all. While it cannot be an insurer of liberties, laws must always strive and maximize the protection and the furtherance of rights. Besides that fact, laws must always be forward-thinking and open-minded, always embracing change, and always inclusive of new concepts. At the least, laws must reflect verified scientific and rational findings beyond the scope of what has been established and constructed. In other words, laws must be the exponent of morality and good policy. This has been especially true in today’s political practice—what is frowned upon before may be acceptable today, for example, witchcraft used to be severely punished in the United States, homosexuality and queerness was viewed as a mental illness before, racial segregation also used to be legal, and the recreational use of cannabis used to be illegal.

          It therefore follows that if properly-made and forward-thinking laws made are diligently followed by its citizens, a more open, prosperous and intelligent society becomes more manifest.

          Today, the Philippines is ideally a government of laws, and not of men, as it follows strictly its codes of laws to the letter, owing to its nature as a primarily civil law legal system. Recent events, particularly pertaining to the widespread proliferation of extrajudicial killings, would show that this isn’t the case, and rights have been greatly miscarried and deprived, especially for the suspects of the extra-judicial killings on their rights to due process. As law students, we must never compromise our belief in the laws to the whims of the cries for vengeance, no matter how righteous those calls may be. Due process is an object of liberty, and, as discussed, liberty is an object of social justice. Most of all, social justice creates and broadens opportunities and rights for people who will engender a better future for the state. The laws of the state may not be perfect, and often times, unfair, but an active citizenry will always fulfil the intent and letter of the laws through their unvitiated and informed consent, regardless of the number of persons with self-serving agendas. The law equally requires our participation and consent to it, as well as demanding us to effect and air out our political concerns and grievances. We are often daunted with other affairs that concern our personal lives, but we must never forget our roles as citizens of the Republic.