Overcoming the failure of the 1987 Constitution of the Philippines: Changing the operating structures of an authoritarian regime

Basil Fernando, Director, Policy & Programme Development, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong

The toppling of dictators in Tunisia and Egypt during January 2011 has inspired uprisings against longstanding authoritarian regimes in several countries of the Arab world. The question now for those countries is what next? Will the dreams of the people for a state in which their rights are protected be realized in coming years? In all countries where similar uprisings have taken place, these questions naturally arise.

For people in Asia, the recent events in Arabia bring to mind uprisings in certain Asian countries during the 1980s and 90s. Among these, the People Power movement in the Philippines against Ferdinand Marcos was particularly remarkable, and even today it is an uprising that people keep talking about. In that movement too, the question soon emerged as to how it would be possible to bring an end to a long period of authoritarian rule in a way that would guarantee the basic rights of people within the framework of the rule of law.

Unfortunately, a quarter-century on, this profoundly important question remains unanswered. The aspirations of the people who took part in this uprising have not been realized. In reflecting on why these aspirations have not been realized, we may also find useful answers of relevance to people who are just now asking those questions as their authoritarian regimes fall.

The People Power movement in the Philippines resulted in a constitution in which the democratic aspirations of the people were adequately expressed. Indeed, the 1987 Constitution of the Republic of the Philippines is considered a remarkable achievement and a paradigm of democratic constitution making. However, in spite of the constitution the actual aspirations of the people have not been realized. The written word of the law has not been sufficient for the alteration of conditions in which repression and denial of basic rights are the norm. As such, it is important to ask why this constitution has failed to deliver on what it promised.

An important distinction

To begin, an important distinction needs to be made between the formal aspects of the state and their actual operations. The experience of the Philippines shows that while there can be a well-articulated constitutional structure for democracy, this does not guarantee that the structure for rule created during the time of authoritarianism will be altered.

The 1987 Constitution clearly recognizes the separation of powers between the legislature, executive and judiciary. It was created to reflect the needs of the people at the time. Indeed, Marcos’s dictatorship had expanded the powers of the executive to the detriment of the power of legislators and the independence of the judiciary. Through the development of emergency and special laws, the police and the military had great power to override the checks and balances that had been built into the constitution prior to his declaration of emergency. This period of emergency highlighted the limitations of the parliament and the judiciary to intervene and to protect the rights of the individual. The new constitution removed these powers and created limitations on the possibility of bringing about similar emergency powers in the future.

However, the actual practices of the policing and administration systems which people face every day did not change after adoption of the constitution. As illustrated by the contents of this edition of article 2, ‘Torture in the Philippines and the unfulfilled promise of the 1987 Constitution’ (vol. 10, no. 1, March 2011), the police have not learned to operate within the limits imposed by law enforcement agencies according to the 1987 Constitution. Although the constitution guaranteed the rights of the people through various avenues, the document was unable to alter the behaviour of policemen so that they would work within the framework of the law. It is this problem of the disparity between written legal instruments and their practical development which must be examined when trying to understand the challenges that are faced in countries following successful uprisings at the end of prolonged periods of authoritarian rule, such as in Tunisia and Egypt today.

The need for intense dialogue

When making the 1987 Constitution, lawmakers in the Philippines used valid principles of constitutionalism and studied various developments that had taken place internationally in the period leading up to their drafting of the new charter. However, these lawmakers apparently did not closely examine the practices developed by the police and the military that had been brought into their daily operations during emergency rule.

The examination of the practical effects on law-enforcement agencies of a lengthy period of authoritarianism is an altogether different exercise to the rearticulation of accepted principles of constitutional law, and an altogether more difficult and trying one. This kind of study requires detailed observations about every aspect of how an institution behaves on a day-to-day basis, taking into account all the routine and real activities of state institutions in the name of law enforcement.

To make sense of what they need to do to bring about change, lawmakers must be intimately aware of the systemic aberrations that have grown under the emergency laws of an authoritarian regime. But lawmakers can become intimate with these aberrations only through close contact with citizens who know the real workings of the system much better than they, and who must be given opportunities to come before legislative bodies and speak candidly. It is only when a legislator obtains the insights of people who understand the real working of the system that he or she will be in a position to devise laws that can effect real change to how institutions actually operate.

Thus, a period of intense dialogue between the legislator and the citizenry after the collapse of an authoritarian regime is an essential part of any project to alter existing authoritarian practices in law enforcement, and when such a dialogue is skipped over or truncated in the rush to come up with a new constitution and all the other paraphernalia of a purportedly democratic state, among the long-term consequences is likely to be the persistence of authoritarian operating structures, as found in the Philippines today.

Among key topics for the dialogue between lawmakers and citizens after the collapse of authoritarianism in any country is the question of torture and ill treatment of persons in custody. Legislators need to examine this topic in great detail if they are to alter the way the police traditionally handle investigations. It is not enough for legislators to entrench the provisions of the Universal Declaration of Human Rights or international human rights conventions into local law. The entrenchment of international legal standards in the constitution is no match for the entrenchment of torture as a method of criminal investigation in the work of policing and security forces.

For the legislator to understand the practical methods by which a law-enforcement system has promoted and propagated extraordinary illegality in the name of authoritarian oppression is not an easy task. However, there are certain obvious places to start study. These include the documenting of routines and habits. For example, torture is often preceded by other illegal acts, such as unlawful arrest and detention. Thus, the legislator needs to hear from citizens and document these types of practices and through them dig deeper and deeper into the systemic behaviour associated with the operating structures of authoritarianism. Narratives should be gathered from victims of abuses and police and other officials alike. As many different people from as many different backgrounds as possible should be encouraged to come forward and speak out about institutional degeneration during authoritarianism, so as to get the fullest picture of current conditions, with which to prepare for a new period ahead.

Internal controls of law enforcement

To go into close study of the operating structures of law enforcement under an authoritarian regime in order to effect change requires the legislator to understand the manner in which internal controls are maintained over these structures.

In law enforcement, formal documents describe how it is the duty of higher-ranking officers to carry out their duties in an ethical manner, because they set an example for lower-ranking officers. Departmental manuals explain how higher-ranking officers maintain order and control over lower-ranking officers in all their operations.

In all systems of law enforcement, there are gaps between the stipulations of formal documents and what happens in practice. However, during periods of authoritarian rule, these written rules are neglected to an extent that higher-ranking officers not only cease to apply them but also go so far as to encourage lower-ranking officers to engage in forbidden activities, such as torture, abduction, manipulation of records and deceit on a vast scale. Abuses of human rights by low-ranked personnel are rife not simply because they are overlooked or tolerated, as may be the case in other settings, but because in times of authoritarianism, they are actively promoted as standard law-enforcement methods.

The task of the legislator preparing the country for a new post-authoritarian future is to come to terms with this body of practices and the linkages between low ranked and high ranked personnel, not just on an anecdotal basis but through close scrutiny and extensive empirical study, so as to understand how, and how far, law-enforcement personnel have departed from the formal stipulations of their duties. If this is not first done then it will not be possible for the legislator to prepare laws and measures to stop such practices in the future, since even with a change in constitutional form, the operating structures of authoritarianism that are embedded in the system will persist.

In short, the challenge is to develop ways of dealing with internal retardations that have fundamentally altered the operations of a system, rather than simply rearticulating existing international norms. Moreover, study of internal mechanisms must be reinforced by further study of external controls.

External interventions

Internal controls cannot function, or malfunction, without being coupled to the interventions of external bodies. In terms of law enforcement, these include judicial interventions, or the absence of interventions, into the violations of law enforcers. Remedial measures must exist, and following the collapse of an authoritarian regime must be developed, which make it possible for citizens to counter violations through judicial intervention. The legislature must concern itself with thorough consultations with those involved in the administration of justice, as well as citizens, so as to develop practical measures to allow the judiciary to address the incidence of torture and other abuses in extant authoritarian operating structures. These must include strengthening measures for access to justice and for the provision of legal aid, so as to enable citizens to seek judicial remedies, since in the absence of complainants the authoritarian operating structure cannot be challenged through the courts.

During a period of repression, judicial independence gives way to various types of political authority and to patronage. Political appointments to judicial positions become quite normal and resistance to interference is steadily weakened. Social expectations of judicial institutions are gradually transformed. Judgements take on a warped logic, which fits with the manner of authoritarian rule. More professionally minded judges and lawyers either quit their positions or begin to retreat. Corruption gradually becomes part of how cases are decided. Naturally, in this situation public trust is replaced with public cynicism, and unless this aspect of authoritarian operations is also addressed then many of the undesirable practices associated with the period of repression will continue despite formal constitutional change.

Apart from changes to the judiciary during periods of authoritarianism that need to be reassessed and addressed after the collapse of a regime, there are also changes to the prosecution system. These can be among the most difficult features of change in response to oppression for outsiders to identify, since there may be few changes to the formal framework for prosecution of criminal cases. Statues regulating the prosecution system may remain as before. However, operations change in response to new political conditions and with realization that law-enforcement agencies are not the agencies that they were before authoritarian rule. New practices emerge that run contrary to the provisions of statues, and which are coordinated with law enforcers to get the best outcomes in terms of the new rules of the game rather than in accordance with the terms of the statute books. For example, prosecutions become politically motivated, and more and more cases are passed through the courts with the collusion of police and prosecutors. Rules relating to exclusion of fabricated evidence may be ignored and fake documents used as evidence. These habits once institutionalized, like others described here, require careful study and preparation if they are to be eliminated.

Finally, the changes to all these other institutions inevitably also affect the legal profession as a whole, since repression creates its own kind of “justice”, which is in fact closer to a model of injustice. Those who are clever enough to read the changes often learn to adjust themselves to the new situation and acquire capacities to benefit from the situation. Advocacy begins to be replaced with various clever skills for bargaining, and unscrupulousness begins to be considered as a form of wisdom. Traditions established through long years of work and education give way to various types of opportunism and cunning.

These are some of the considerations for people in the Philippines who are keen to address the incidence of torture in their country and who want to complete the process that began with the 1987 Constitution. It is not too late for unresolved problems to be addressed, if legislators are prepared to engage in a careful and lengthy process of consultation with citizens. However, the experience of the Philippines amply shows that where legislators concern themselves only with international standards and sophisticated practices from abroad that have few parallels or linkages with what is going on in their own country then the consequences can but be the persistence of authoritarian operating structures, to the detriment and dismay of citizens who are daily confronted with the consequences of these structures’ real operations, not the constitutional niceties of 1987 that remain to be transformed into reality.