Richard Javad Heydarian, Non-Resident Fellow of the Stratbase ADR Institute
Constitutions are, at their very core, an assemblage of aspirations, holding the promise of a just and orderly society. Yet, they don’t, on their own, guarantee the fruition of such lofty vision.
It’s ultimately up to men, especially those in the government, to uphold the constitution’s spirit and implement its letter. For a democracy, what’s even more important than its constitutional foundation is the set of informal rules that govern the operations of power among mortal men and women in office.
“Democracies work best—and survive longer—where constitutions are reinforced by unwritten democratic norms,” argue Harvard Professors Daniel Ziblatt and Steven Levitsky in their seminal work, “How Democracies Die.”
Combining decades of thorough research on democratic transition, maturation and breakdown around the world, the authors shed light on the dangers of what one can call “slow-motion” authoritarianism by (democratically-elected) populist leaders.
It must be said that their work barely mentions Philippine President Rodrigo Duterte at all, yet their theoretical framework is extremely useful for understanding where the Philippines is potentially headed in coming months and years.
Are we still a democracy? Is our democracy going to survive or, alternatively, get empowered by the current leadership? Is the Filipino president bringing about a new kind of “democracy”, whereby liberal constitutionalism is supplanted by majoritarian rule, giving birth to what American Political Scientist Fareed Zakaria famously termed as “illiberal democracy”?
The Philippines has arguably among the most liberal-democratic constitutions anywhere in the world. The inbuilt safeguards against executive power abuse, the guarantees for basic civil liberties and political freedom, and the emphases on national patrimony and self-reliance – these are just among the many magisterial aspects of the 1987 constitution, which was born on heels of a “People Power” revolt a year earlier.
Yet, there is no basis for complacency. After all, same things could be said of the 1935 constitution, an almost exact replica of the American constitution, which nonetheless failed to prevent Ferdinand Marcos’ self-coup (autogolpe) and eventual declaration of Martial Law that ended three decades of rowdy, corrupt democratic practice. Thus, there is no reason for us to be complacent about the supposed “self-checking” characteristics of democracy.
What governs our politics and society more broadly, are not the laws of our nation, but instead the informal rules, norms, civic culture and institutionalized practices, which have undergirded our fledgling democracy.
It must be said that the election of Duterte and the way by which he secured the highest office of the land raises some concerns about the viability and survival of our democracy, at least in its liberal constitutional form.
Levitsky and Ziblatt cite several indictors, which signal the likelihood of authoritarian lurch under specific populist candidates. Not all populists are authoritarians, nor are they necessarily an anathema to human rights and democracy, especially when they espouse for the rights of marginalized sections of the society.
Rule by law
The four indicators, especially in the pre-election stage, are: (i) Rejection of, or conditional commitment to, democratic rules and game; (ii) denial of legitimacy of political opponents; (iii) toleration or encouragement of violence; and (iv) readiness to curtail civil liberties of opposition elements.
Critics would argue that Duterte’s repeated threats to close down the Philippine Congress, his disparagement of political opposition as agents of reaction, open encouragement and celebration of scorched-earth crackdown on suspected drug dealers and experts, as well as his threat to close down critical mainstream media outlets can arguably fit the bill.
And Duterte got away with all these threats — and managed to win the elections and later even build a supermajority congressional support — precisely because existing informal rules and political norms tolerated, if not embraced, all of these illiberal tendencies.
When elected officials and those in position of power refuse to stand up for the constitutional order, especially in face of a direct and unmistakable challenge, the whole house of cards can come crashing down. Even worse when elected officials and heads of other branches of the state begin to toe the chief executive’s line, even in defiance of the constitution.
The constitutional order is just as strong as the willingness of political actors to honor, preserve and defend it.
The problem is that unlike in the old times, when the big bang of coups and declaration of nation-wide martial law announced the death of democracy, today we are facing a more liminal, protean and stealthy process of democratic deconsolidation.
According to the two Harvard professors, would-be-autocrats tend to dismantle democratic institutions by capturing the referees, through packing key institutions of the state with loyalists; sidelining the key players, through purging and silencing of independent voices; and rewriting the rules to tilt the playing field against opponents, which can come through constitutional amendments or new constitution.
As Daniel Ziblatt and Steven Levitsky warn, “Many government efforts to subvert democracy are ‘legal,’ in the sense that they are approved by the legislature or accepted by the courts.” In fact, as the authors point out, undemocratic policies, “may even be portrayed as efforts to improve democracy – making the judiciary more efficient, combating corruption or cleaning up the electoral process.”
The upshot of ostensibly “legal” subversion of liberal democracy is the phenomena of “rule by law,” when the constitution and instruments of law are no longer a check on the chief executive’s power, but instead serve as its extension and force multiplier. The ultimate victim isn’t only democratic freedom, but, even more crucially, the “rule of law” — the impartial and predictable dispensation of orderly justice — which is essential to the prosperity and orderliness of any modern society.