The rule of law and the Constitution

Published February 6, 2018, 10:00 PM

by Restituto Cayubit

Dean Art D. Brion
J. Art D. Brion

By J. Art D. Brion (ret.)

(5th of a Series)

The public debate on constitutional reform is slowly gaining ground, prodded by the congressional hearings, by our politicians’ wrangling on how to amend the Constitution, and by extensive media coverage.

I have no way of knowing whether our kababayans are already listening and monitoring the developments. I do hope they are, as they must know what they are ratifying in order to meaningfully consent to the amendments.

I can only hope, too, that the government shall make it its business to fully and objectively explain to the people what the maintenance of the status quo or constitutional change can mean to them. An informed citizenry is one of the necessary paths to good governance.

So far, nobody knows for sure what the exact terms of the administration’s federalism proposal are. The administration’s hope, it seems, is to generate interest and to hook the people into federalism this early, solely on the strength of President Duterte’s dire predictions if no federalism does not take place.

Lest it be forgotten, we are reforming the Constitution to make it a more effective governing law for the nation. Likewise, glaringly missing so far is the explanation that a constitution can only serve its purpose if its terms are observed and followed.

The best constitution cannot lead to effective governance if those enforcing it will not be true to their mandate to follow, protect, and defend it; if those with the authority to interpret it, skews its interpretation for their selfish ends; and if the citizens whom the Constitution seeks to protect, are apathetic and do not care whether its terms are observed.

Compliance with the terms of the Constitution forms part of the rule of law principle that underlies the democracy we hope to keep alive in this country. The rule of law, as currently understood, is the principle of governance under which all persons, institutions, or entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally, enforced,  and independently adjudicated. In short, it translates to the supremacy of the law and the equal treatment of everyone under this law.

The principle is not a new one. In the Arab world, a rich tradition of Islamic law embraced the notion of supremacy of the law. The moral and philosophical traditions across the Asian continent, including Confucianism, have upheld the core principle of placing the wishes of the populace above those of the rulers. Constitutionalism (or the idea of a fundamental supreme law), on the other hand, has been the focus of the continental European concept of the rule of law. As early as the Magna Carta of 1215 in England, the importance of the judiciary and the judicial process characterized the rule of law. America added its own innovations and subsequently passed these on to us.

We are therefore not alone nor the first to adopt the rule of law that underlies our 1935, 1973, and 1987 Constitutions. We are merely harvesting the fruits of a rich and old tradition, with our own emphasis to adapt the rule to our own circumstances. The focus of this adaptation is the observance of the supremacy of and accountability to the law, equality before the law, and fairness in the application of the law.

The supremacy and equality aspects are important to us because of our history. While slavery has not existed in our society since the Spanish colonial days, we have been a colony and are not strangers to the view that the colonizers are a class separate and higher than the ordinary citizens. After we achieved independence as a nation, this unbalanced perspective (with the ruling elite taking the place of the colonizers) quietly continued in the semi-feudal society from which we have not totally emerged.

Today, essential inequality in the enforcement of the law within our society still exists: the rich can get away with violations of the law while the lowly citizens bear the brunt of its enforcement. Our political leaders still use the law to stifle dissent and to retaliate against those who displease them.

Look around us: the examples are too many to be recited. Think of the impeachment of former Chief Justice Renato Corona. The current suspension of the Deputy Ombudsman could be the latest in the litany of these violations in light of the Supreme Court’s existing ruling disallowing punitive executive action against the Ombudsman and her deputies.

The requisite fairness in the application of the law in our country still leaves much to be desired. The due process clause of our Constitution has admittedly served us well in nullifying unreasonable laws. But even reasonable laws may be dissimilarly applied to the rich and to the poor, to the government official and to the citizen, to the landlord and his tenant, and to the employer and his employee. This happens either because of the lingering imperfection in our system, or purely because of the human intervention that adjudication and implementation require.

Let us hope that all these shall be in the consciousness of the framers of the amendments to our Constitution and of the people who, hopefully, shall be in the forefront of driving the framers to the amendments we need. Part of this consciousness should be the awareness that we need not amend the Constitution if it will not be enforced anyway, if it will not at all benefit the body politic, or worse, if it will only prejudice the nation.


I devoted my article last week to Ka Blas Ople, my mentor who unselfishly served the nation during his lifetime and who was one of the framers of the Constitution that our leaders now propose to amend. I expressed my profound appreciation of Ka Blas in this article and I could only wish I had expressly conveyed my thoughts to him during his lifetime, particularly my thanks and appreciation for the guidance he provided me and many others.

This week, another colleague in the vineyard of the law passed away; I served side by side with her for eight years in the Supreme Court. I refer to Atty. Julieta Y. Carreon, former Division Clerk of Court and later my Chief of Staff, who guided me into the ABCs of life as a Justice of the Supreme Court.

When I was appointed to the court in 2008, I thought I was all prepared to swim with my seasoned colleagues because of my experiences as Secretary of Labor and as Justice of the Court of Appeals.

To my horror, I immediately found out that I was wrong; I badly needed an experienced guide in my judicial journey. I found her in Atty. Carreon who unselfishly dedicated her hours to the tedious tasks of responding to the court agenda, delineating the critical issues from the submitted pleadings, researching the law, guiding and handholding the lawyers, helping in the drafting of my ponencias and opinions, and providing encouragement during the lonely days of dissent and the darker days of frustrations and heartaches.

Thank you Atty. Carreon (I never called you Juliet, as others did) for your help, guidance, and for being the mother of the JADB SC Office who provided us with continuing drive and stability. How I wish I had expressly appreciated your valued services while you could still physically hear it!

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