Making the ocean less salty: An advocacy for a more civilized public discourse

By: Kevin Ken S. Ganchero

Far Eastern University Institute of Law

 

Executive Summary

 

     A common trait of all democratic governments is the recognition that sovereignty resides in the people who directly, or through their duly elected representatives, shape public policy. In these societies, every opinion or dissent ─ is a drop in an ocean of discourse. Ideally, this whole mass of ideas would condense into the best of solutions, laws and actions that the people can collectively pursue. Admittedly, this is a painstaking process.

     Healthy debate is crucial for discourse in this complicated system we call democracy because the laws, policies and even the roster of elected public servants can only be as good as the discourse that put them in place. We are the ones who decide who gets elected, which laws get passed, and which policies are pursued. Before we decide, we always discuss.

      Many, in their rage and frustration from suffering under a government which is perceived to be incompetent and corrupt, and under a society plagued by crimes were blinded from seeing the relevance of the rule of law. Why should we be shackled by rules when our enemies, the criminals, the corrupt, and those who threaten our safety are bound by none? This has become a contagious sentiment among those who openly support extra-judicial killings and making the police less accountable for their operations’ casualties. The idea horrifies reasonable law students but unsurprisingly, it is appealing to people who endured years of crime and corruption. It is a sad reality that when justice is out of reach, frustrated people would put the law in their own hands.

     This problem is a clear effect of a lack of understanding of the law’s purpose. This willful ignorance is even reinforced by the uninformed discourse fueled by rage, disappointment, and frustration. The same emboldens vigilantes and nurtures contempt for the rule of law.

     One way to nip the problem in the bud is through education. Reforms should be made in the current curriculum to encourage critical thinking, social awareness, and understanding of our laws. The solution shouldn’t be confined to government action. Individuals should also chip in and aid in nurturing progressive thinkers who see the bigger picture and who possess the fortitude not to give in to the strong demand for conformity.

     For me, prosperity could only be achieved in a community composed of people who guard their freedoms against arbitrary restrictions from despots and the mob alike. Autocrats may promise prosperity and security but only a free society would guarantee that the mentioned promises would redound to the benefit of all and not just a selected few.

     I intend to promote the foundation’s philosophy by continuing to teach debate, the law, and relevant issues inside and outside our country. I hope that this will create safe spaces for people to speak up and to learn how to cope with criticism. While  speaking in front of others is a frightening experience for most people especially the youth who were raised to respect authority, it is a necessary fear to overcome in order to encourage more participation in public discourse and to keep ignorance in check. This in turn ensures the health of our democracy and our liberty. Despots rise to power when people are silent. Abuses become normal when nobody expresses indignation against them.

 


         I. Discourse as a keystone of democracy.

          Freedom of speech is the “bright and consummate flower of all liberty.”[1] Beyond prose, this phrase is a reminder for all societies that aspire to be truly democratic: that without freedom of speech, there is no liberty. A common trait of all democratic governments is the recognition that sovereignty resides in the people who directly, or through their duly elected representatives, shape public policy. In these societies, every opinion or dissent ─ is a drop in an ocean of discourse. Ideally, this whole mass of ideas would condense into the best of solutions, laws and actions that the people can collectively pursue. Admittedly, this is a painstaking process. Nevertheless, we pursue this ideal as a promise to ourselves that whatever action we take as group has passed the proverbial test of fire and is, as far as practicable, fair to everyone.

          Since I was a college freshman, I participated in debate tournaments and won my fair share of awards. Initially, it was all about the competition. I had a change in perspective when, in an interview, I was asked a simple but disarming question: “What’s the point of debating? What’s the point of having people talk and clash with one another?” Being relatively unexposed to discourse outside of competitive debate circuits, the answer did not come to me soon enough in order to leave a good impression on my interviewers. Regrettably, the answer came to me when I was already taking up constitutional law in law school. The better answer is that healthy debate is crucial for discourse in this complicated system we call democracy because the entire system which includes the laws, policies and even the roster of elected public servants can only be as good as the discourse that put them in place. We are the ones who decide who gets elected, which laws get passed, and which policies are pursued. Before we decide, we always discuss.

          After that realization, I took on the advocacy of sharing my knowledge of proper argumentation to young people in order to encourage more productive public discussions and to weed out the habits that poison the ocean of discourse early such as cursing, degrading, humiliation and intimidation. These habits do not inspire intelligent discussion that is the foundation of a vibrant democracy. To this end, I’ve retired from competitive debating taught in workshops and seminars here and abroad. I am also a regular judge in local debate tournaments. For me, this is more than just “paying it forward”. It is a personal advocacy borne out of my hope for change. I hope for a future where the daily social and legal dead ends we encounter because we fail to amicably settle and reach a compromise in petty quarrels and in bigger issues, would no longer be a problem.

          My advocacy is to make people understand the responsibility that comes with their opinions and that freedom of speech is not the freedom to be irresponsible and to defame, or a license to smear reputation and ruin credibility.

          I understand that my efforts are but tiny drops into a large ocean. Even so, I pursue this ideal because each drop still makes the ocean of discourse less salty. Soon enough, we will be discussing groundbreaking ideas and abstain from toxic discussions that suffocate them.

 II. Liberty and prosperity under the rule of law

          Every day, I have been waking up to a succession of complaints online or otherwise expressing disappointment in the quality of discourse on Philippine politics and laws. I understand that it’s frustrating and infuriating. But we should not let disillusionment prevent us from fighting back with facts and reason with a calm disposition. Those who, in their rage and frustration, call for the circumvention of human rights and the rule of law already have safety in numbers. How can we be vigilant in silence?

          This overwhelming tide of public outrage, while misguided, has inspired a dangerous contempt for fundamental rights namely: the rights to life and due process. Generations of suffering under a government which is perceived to be incompetent and corrupt, and under a society plagued by crimes blinded us from seeing the relevance of the rule of law. Why should we be shackled by rules when our enemies, the criminals, the corrupt, and those who threaten our safety are bound by none? This has become a contagious sentiment among those who openly support extra-judicial killings and making the police less accountable for their operations’ casualties. The idea horrifies reasonable law students but unsurprisingly, it is appealing to people who endured years of crime and corruption. It is a sad reality that when justice is out of reach, frustrated people would put the law in their own hands.

          In simple terms, “rule of law” means that the government is a government of laws and not of men. That everyone in society is bound by the law, including the government. It is a core feature of democracy. Nineteenth century theorists[2] and modern day organizations such as the World Justice Project[3] point to its four fundamental principles:  First, the government and its officials and agents are accountable under the law; Second, the laws are clear, publicized, stable and fair, and protect fundamental rights, including security of persons and property; Third, the process by which laws are enacted, administered and enforced is accessible, fair and efficient; and Fourth, access to justice is provided by competent, independent and ethical adjudicators, attorneys or representatives and judicial officers who are of sufficient numbers, have adequate resources, and reflect the make-up of the community they serve.

          “Liberty and prosperity” which the rule of law aims to keep in place, for me, is relative. While there is no question on what liberty pertains to, prosperity can be many things. For some, it means economic or financial well-being. For me, prosperity could also mean being able to live in a community with people who guard it against arbitrary restrictions.  A prosperous society is where the citizens guard their liberties zealously with the understanding that doing so is the only way they can freely pursue their economic, social and cultural development.[4] Autocrats may promise prosperity and security but only a free society would guarantee that the mentioned promises would redound to the benefit of all and not just a selected few.

          In light of the recent developments here and around the world where radical groups coming from disillusioned sectors call for the circumvention of due process to get immediate results,[5] the mentioned list should be expanded to include another principle. The fifth principle is that the people understand the importance of laws for themselves as individuals and as a group. I fully support the first four principles. However, laws would be meaningless when the people to whom these laws apply, do not understand their importance. This is relevant because even the most stable of structures would collapse against an unrelenting tide of skepticism. Civilizing discourse makes sure that the tide is calm and manageable. In fact, this view is shared by many including Professor Richard H. Fallon, Jr. who believes that there must be an element of understanding: “The first element is the capacity of legal rules, standards, or principles to guide people in the conduct of their affairs. People must be able to understand the law and comply with it.[6]

          Disappointment and disdain against the rule of law is not just a product of slow delivery of justice. Most of the time, it is a result of the people not understanding how it works. The consequence is tragic. For example, here, the Commission on Human Rights (CHR) received flak for its strong statements against extra-judicial killings and the rising number of casualties from police operations following the government’s declaration of an all-out war against drugs. Angry people called for its abolition even going as far as calling human rights useless and that they only serve to protect criminals from being delivered to “justice”. They did this without understanding the CHR’s mandate and the fundamental rights that it is tasked to uphold and protect.

          The same problem was observed when people openly supported vigilante justice while brushing aside calls for due process and the presumption of innocence for the accused. They called for blood without realizing that the very rights they seek to set aside are the same rights which guarantee their protection when they find themselves at the receiving end of persecution in the future.

          Even the magistrates of the Supreme Court were not spared from this tide of contempt.[7] Fortunately, the court took the moral high ground by refusing to fight fire with fire and responded instead with a firm but calm admonition of the administration’s approach to the drug problem. However, this fiasco has shown us that no one, even the high court, is immune from the effects of a toxic public discourse which ignores reason and blinds the masses from seeing the adverse consequences of circumventing the law.

          These problems are clear effects of a lack of understanding of the rule of law. This willful ignorance is even reinforced by the uninformed discourse fueled by rage, disappointment, and frustration. The same emboldens vigilantes and nurtures contempt for the rule of law. Without addressing these issues, a system of accountable officials and agents; clear, publicized and stable laws which protect fundamental rights; accessible, fair and efficient administration of the laws; and competent, independent and ethical adjudicators, attorneys or representatives and judicial officers, will always be in constant jeopardy.

          One way to nip the problem in the bud is to address the problem in education. Reforms should be made in the current curriculum to encourage critical thinking, social awareness, and understanding of our laws. The solution shouldn’t be confined to government action, however. Civil society and the private sector should also chip in and aid in nurturing progressive thinkers who see the bigger picture and who possess the fortitude not give in to the strong demand for conformity.

III. Promoting this philosophy as a student and in my future legal career.

          This is why, as a student, I intend to promote the foundation’s philosophy by continuing to teach debate, the law, and relevant issues inside and outside our country. The growth of debate culture will create safe spaces for people to speak up and to learn how to cope with criticism. While  speaking in front of others is a frightening experience for most people especially the youth who were raised to respect authority, it is a necessary fear to overcome in order to encourage more participation in public discourse and to keep ignorance in check. This in turn ensures the health of our democracy and our liberty. Despots rise to power when people are silent. Abuses become normal when nobody expresses indignation against them.

          In my future legal career I still plan teach and volunteer as a lecturer in legal education workshops for non-law students. My background in policy and law will help me in making people understand the relationship between law, policy, and discourse. I plan to teach both in law school and in college. In law school, I want my future students to learn that the law must be appreciated in light of reality because legalese devoid of reality is counterproductive. Aspiring lawyers should learn that the law is not a lifeless body of rules. It is reason given life. Apart from teaching, I also plan to work as a government lawyer. I believe that the government needs young blood. It needs young people who still have some optimism left in them who have the energy and enthusiasm to propose reforms when necessary.

          Laws and policies change as often as public officials come and go. What I hope to achieve is to make a substantial contribution towards enriching public discourse by encouraging people to become more responsible and reasonable participants ─ to see beyond petty differences and mistakes and look at the bigger picture. I want people to understand the important role of their opinion in affecting policy and that they should be responsible for their opinions and criticisms no matter how small these are in comparison to the much larger ocean of discourse. I want them to realize that “the aim of argument, or of discussion, should not be victory but progress.”[8]

[1] Wendell Philips

[2] See for instance the works of Albert Van Dicey and of Friedrich A. Hayek, The Road to Serfdom 72 (U Chicago, 1944) and Friedrich A. Hayek, The Constitution of Liberty 208 (U Chicago, 1960) cited by Todd J. Zywicki, Associate Professor of Law, George Mason University School of Law in Rule of Law, Freedom and Prosperity: A Symposium Sponsored By the Law and Economics Center at George Mason University School of Law: The Rule of Law, Freedom and Prosperity, 10 S. Ct. Econ. Rev. 1 (2002).

[3] The World Justice Project® is an independent, non-profit organization advancing the rule of law worldwide available at http://worldjusticeproject.org/who-we-are last accessed September 13, 2016.

[4] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 [ICCPR].

[5] See Donald Trump’s Contempt for the Rule of Law available at http://www.nytimes.com/2016/06/07/opinion/the-judicial-system-according-to-donald-trump.html?_r=0 ; The EU and the Rise of Extremism and Populism: How to protect democracy and the rule of law in Europe? available at http://humanistfederation.eu/our-work.php?page=the-european-union-and-the-challenge-of-extremism-and-populism.

[6] The ‘Rule of Law’ as a Concept of Constitutional Discourse, 97 Colum. L. Rev. 1 (1997).

[7] Ramos M., Alconaba N., “Duterte Defies Supreme Court” available at http://newsinfo.inquirer.net/804700/duterte-defies-supreme-court.

[8] Joseph Joubert