Monday, May 4, 2009

Rethinking the Concept of Sovereignty

by Alan S. Cajes

Note: This article was written sometime in 2001 as a reflection of Edsa Dos and Edsa Tres. The picture is from

"Consent of the governed" is a well-known political phrase that is attributed to John Locke. It serves as the bedrock of the country's republican and democratic political system. In 1986, the message of the phrase found its way into the Philippine Constitution -- the document that encarnates our will as a people, as well as the terms and conditions of our social contract. It declares that sovereignty resides in the people and all government authority emanates from them. Put differently, the governed are sovereign and government authority is derived from their consent. When that consent is withdrawn, government authority is revoked and the governed can either govern themselves directly or choose another governor to steer themselves.

Sovereignty, therefore, is the principal function of the governed -- a function that can be delegated to the agents. For Rousseau, sovereignty is nothing less than the exercise of the general will.

Since we -the governed- are preoccupied with other demands of life like earning a living and raising a family, we choose from among ourselves those who will exercise government authority on our behalf, namely, the lawmakers, executives, and justices. In this arrangement, the agents enact, implement, and interpret laws in our behalf as the principals. Because there are three agents of the people, each performing a specific task, these agents are sovereign in their respective official acts. The lawmakers are sovereign when they pass or enact laws. The executives are sovereign when they implement the laws. The justices are sovereign when they interpret laws or settle competing legal claims. The three agents of sovereignty lead, respectively, the three co-equal branches of government, namely, the legislature, the executive department, and the judiciary.

The Philippine Constitution, however, provides occasions when we can directly exercise government authority, i.e., direct or unmediated democracy. One occasion is voting during elections. At the moment of writing the names of those who we think will best represent our will, we - the people - are sovereign. Another occasion is when we directly propose or enact laws or approve or reject any act or law through the system of initiative and referendum, which are politically attractive but seemingly impractical possibilities.

The political turmoil that hit the country from the second half of 2000 to the first half of 2001 tested not only our political assumption, which is more and more representative democracy, and less and less direct democracy. It also induced opposing claims to sovereignty. Congress impressed to us that it was sovereign in pursuing the impeachment trial of Mr. Estrada. Mr. Estrada, when he was still exercising the powers of the presidency, insisted that the governed wanted him to fulfill his contract until 2004. Those who took part in "Edsa Dos" claimed that they represent the will of the people. Such claim was dramatized in slogans like: Ang hatol ng bayan? Guilty si Erap! While those who participated in "Edsa Tres" proclaimed that they were the sovereign Filipino people.

Now, the question is: Who represented the will of the people? Congress? Mr. Estrada? The latest two Edsa's?

Philippine politics, to borrow a phrase from Norton E. Long, has been largely conducted by agents rather than principals. Corollary to this practice, Long argues that the will of the people is always expressed by some of the people. And as such, it is a process rather than a substance.

What Long is saying is that it is difficult to determine the will of the people if we consider the people's will as a substance, i.e., something that we can directly experience through our senses. We cannot possibly see, touch, smell, hear or feel through our skin the people's will directly. We can only perceive the people's will through signs or symbols that are results of procedures. For instance, the act of voting is an expression of the voters' will. To determine the will of the voters, we count the ballots, tally them, and based on generally accepted rules, such as the rule of simple majority or plurality, we declare the winner of an election. Here, the will of the people is expressed in signs or symbols, such as names of candidates voted upon, the number of votes of each candidate, the ballot on which the names of voted persons are written, the ballot box, certificate of canvass, etc. The people's will is expressed in signs or symbols as a result of a process, i.e., a series of activities identified and logically or sequentially arranged to come up with the desired outcome.

In science, the observance of procedures under a particular methodology is critical in determining the truth and validity of a result or outcome. Results of experiments in the natural and social sciences are accepted based on the validity of the method employed and the procedures followed. Thus, authority in science hinges, to a large extent, on methods and procedures.

In politics, Long claims that citizens and organized groups show a sign of maturity when they recognize their proneness to folly and adopt procedures to guard against it. Hence, he says, an important factor in sustaining a rational political administration is the promotion of a disciplined public opinion -- one that is trained to observe tested procedures and produce evidence and reasoned alternatives.

The idea of strict adherence to procedures is not foreign to Filipinos. The 1987 Constitution provides that no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.

In response to the question, it is Congress or the Senate acting as an impeachment tribunal, which was most likely to express the people's will since it has a process that has been tested at least somewhere else in the world. But there is sufficient reason to concede that the governed elected the Senators to perform certain mandated functions. This goes without saying, however, that elections in this country have always been absolutely clean and fair.

The former Chief Executive had the right and duty to stay in office and complete his term. And by so doing, he is merely following the people's will, which was expressed through their ballots in 1998. This right and duty, however, is not absolute because it is obviously subject to certain procedures provided by the Constitution. That is why Mr. Estrada could have been dismissed from office if he was found guilty by the impeachment tribunal. And since resignation is not prohibited by the Constitution, he could also have vacated his office voluntarily. Indeed, the Supreme Court cognized this avenue and declared the Office of the President vacant. Later on, Chief Justice Davide swore in Ms. Macapagal-Arroyo as President.

Which brings us now to the remaining issue whether some of the people, those in the pro- and anti-Estrada camps, express the will of the people.

The insistence that we observe tested procedures to determine the will of the people does not in any way suggest that free and effective criticism is not considered as a tested procedure. The parliament of the street and other forms of expressions of beliefs and opinions by some of the people are already regular features in the Philippines and elsewhere. The people power at EDSA in 1986 is a sufficient proof that free and effective criticism works.

The problem with this procedure is its tendency to fan heat than shed light, especially when opposing camps mobilize, in one way or another, a more or less equal number of people to their cause. Under this condition, which is quite similar to what we experienced in the streets and other public places, this procedure may fail to achieve its desired end. And prolonging such a process could harm the country in the long run. A prolonged political impasse compounded by massive displays of political strength from both sides, is a feast we cannot afford.

Rousseau points out that the general will is always right and tends to the public advantage. But he also cautions that the deliberations of the people are not always equally correct. When a tested procedure used to determine the people's will ceases to function properly, people, rather some of them, fail to communicate. The result is a hollow politics because the essence of politics is debate, which requires that there must be something to debate about. It does not come as a surprise, therefore, if pro- and anti-Estrada supporters simply hurl invectives at each other or display force through sheer number because of a failure to argue and communicate.

There is a consensus among political scientists that constitutions give form to politics. Thus, a government without a constitution would lack the specific kind of moral limitation that distinguishes politics. Our Constitution mandates a procedure to solve a problem like Mr. Estrada. We owe it to ourselves as citizens of this country to resolve our conflict through free discussion and free acceptance of the outcome of our agreed upon constitutional procedure. Along the way, as former Senate President Jovito R. Salonga says, we can disagree without being disagreeable and argue without being difficult.

In the final analysis, it is only through enlightened vigilance, intelligent debates, and proper scrutiny of issues through tested procedures that we can mature politically as a nation.

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