Saturday, August 01, 2009

Rule of Law 5: Lawless State, Corruption and Coercion

Three days ago, I edited the definition of “rule of law” in Wikipedia. I provided the first 3 paragraphs, below –

The rule of law, also called supremacy of law, simply means that the law is above everyone and it applies to everyone. Whether governors or governed, rulers or ruled, no one is above the law, no one is exempted from the law, and no one can grant exemption to the application of the law.

Friedrich Hayek in his book “The Constitution of Liberty” (1961), wrote: “By ‘law’ we mean the general rules that apply equally to everybody… As a true law should not name any particulars, so it should especially not single out any specific persons or group of persons... the rules must apply to those who lay them down and those who apply – that is, to the government as well as the governed – and that nobody has the power to grant exceptions.

There are two important implications for this. One, the laws should be very transparent and clearly worded so that all mature citizens would clearly understand what are strictly prohibited and the penalties associated with violating the laws. And two, the laws and prohibitions should be as few as possible. Both citizens and law enforcers can easily remember them and people can grow in freedom, in an environment of very few restrictions and prohibitions.”

I posted this entry in my facebook Notes, tagged several lawyer friends. Within hours, several comments came in. Those with facebook account can view the comments here,

I am writing below the important comments that I got. I cannot, however, give the names of those who wrote these as I did not have time to ask permission from each of them to use their comments in this article. But what is important are the messages and arguments being made. There were actually more comments, but I will include only 5 of them here –

(a) “Hayek's definition is one acceptable way of understanding the rule of law. However, a fuller discussion should discuss efforts to deal with Legal Realism, i.e. Critical Theories, Postmodern views, Feminist Legal Perspectives and other challenges and accomodations to what appears to be a very liberal principle. The Rule of Law is vague, complex but a useful heuristic to understand the nature of the normative world. Its definition should reflect that.”

(b) “It should be clear enough, right? Until lawyers, politicians (and philosophers) discombobulate things.”

(c) “I believe the very basic need for people to understand the "rule of law" is to instill discipline, respect and selflessness to everyone....especially in the mass base at the local level...”

(d) “There is literature on the equivalence between "Rule of Law" and Due Process. And, of course, it originated with the revolt against kings who were traditionally "above" the law, since they were The Law.”

(e) “What lawmakers don't get is that their readiness to pass new laws, undermines the rule of law in general. The irony of utilising the law for purposes of social engineerng is that it actually detracts from the objective of creating a more moral society. The more laws there are, the more the public is alienated from the law…. the more the law becomes unrepresentative, and the only logical consequence of this is that more people become impelled to evade or break laws, which ultimately erodes respect for the rule of law in general.”

I do not think that the concept of ‘rule of law’ is vague, save for those politicians who use the term as they need it for their political interests, but totally disrespect the laws when no one is watching. Rule of law’s definition is very clear, categorical and explicit: The law rules above men and women, over and above their arbitrary interpretation, administration and implementation of the law. For instance, when the law says “No murder, No stealing”, then no if’s and but’s, whether the murderer or thieve is a King, a President, a priest or a beggar, the law will apply equally to all or any of them.

Hayek wrote about "equal application of the law to unequal people". When people understand and respect the rule of law, there will be peace and order in society as they perfectly know what the prohibited actions are, and the consequences for violating the law. There is very little or no allowance for arbitrary interpretation and application of the law by the judges and law enforcers because those laws are abstract and general, they were designed against no one individual or group, but are designed to apply to all, no exception.

Most laws are prohibitions: laws against pollution, against drunk driving, against smoking in public places, etc. So a tautological definition is: Rule of Law = Rule of Prohibitions.

When there are plenty of prohibitions, then there is less freedom in society. Another implication is that when there are too many laws, it will be impossible for ordinary citizens to remember them, or even fully comprehend those laws that they can remember. Thus they will need lawyers, advisers, and consultants. Lots of talent in society are diverted from actual production to personal and corporate advising on the various laws, including their revisions and amendments.

Contemplating on these things and the President’s State of the Nation Address (SONA) last Monday, I can conclude that the State itself is among the biggest violators of the rule of law.

Before and after the SONA, Metro Manila’s roads saw the anarchy of the State’s police forces and patrol vehicles going against in-coming traffic flow, going even on red lights, making left-turns or U-turns even if such acts are clearly prohibited, parking their cars and motorcycles in areas with clear “No Parking”. The State’s police and patrol vehicles were busy “assisting” the many legislators, Cabinet officials, local government officials, diplomatic officials, and other people and guests who were going to the President’s SONA at the House of Representatives.

It was also very noisy as those police vehicles were saying, “We are the kings and owners of these roads! We do what we want, the loudness of our sirens are directly proportional to our power and lawlessness.”

And to the legislators, Hayek also said something like “not all products of the Legislature can be considered as 'laws' in the sense of abstract and generalized commands that targets no one or any group in particular.” For instance, those laws giving subsidies or entitlements to some groups are not real laws because they are focused on a particular group or sector. They are commands, not laws. Laws should not make any exemption, and no one can grant exemption. If legislators give subsidies to some sectors but not to other sectors, then there is arbitrary granting of favor for some while exempting from such favor other sectors or group of people. They are commands, not laws.

Commands and lawlessness. We hear and see them everyday in our streets and in the various regulations and prohibitions that average citizens are being subjected to.

Meanwhile, I am posting here 3 my earlier articles about Rule of Law.

1. Coercion and Rule of Law

August 14, 2007

Coercion is part of government. The government needs coercion to enforce a "rule of law", like law against killing, stealing, bombing, kidnapping, etc. Laws against the bad guys so that the good guys can work and live peacefully. The coercion in taxation is used to finance the state to enforce a rule of law, protect the citizens against the bad guys and bad actions.

Corollary to "rule of law", it is imperative, I believe, that laws should be as few as possible, and not number in thousands, even tens of thousands, from barangay rules to traffic rules to municipal laws to national laws, even international laws.

The purpose of having as few laws as possible, is to make the enforcement of the "rule of law" effective, to make the coercion effective, and NOT make the "rule of men" effective. Another purpose of having as few laws based on coercion, is to have more space, more leeway, for civil society organizations (like your Rotary Club, Lions Club, Badminton Club, Couples for Christ, etc.) to perform certain social functions that rely on volunteerism, on free will of individuals, and not on the iron will of government.

So, the next logical question is: what is the dividing line between coercion and volunteerism? That is, what functions should be enforced by coercion, and what functions should be expected from volunteerism?Another question is, which coercive power of the state are "legitimate" and which ones are "illegitimate"? The answer will depend on the philosophical point of view that one takes. But one test – "rule of law = no exception", of having rules that apply to everyone, governors and governed – will l determine which laws and state coercion are legitimate and which ones are not.

Coercion and Taxation

Not all forms of taxation is coercion. And coercion is a matter of degree, whether in the personal or political level, and that separates one form of coercion from the other. In short, there are varying degrees of coercion.

A child being forced by his parents to stop watching TV at 7pm and start studying or doing his class homework so he should be in bed by 8pm, can claim "coercion" by his parents.

A husband being obliged by his wife to repair a leaking faucet first before she will agree to have sex with him, can claim that he's being "coerced" by the wife.

A shop owner with several employees being threatened to give them 5 more months of extra bonus, otherwise they will strike or sabotage the office or shop, can claim "coercion" by his workers.

A person being obliged by his church to give tithes + other church expenses, otherwise his church will expel him and condemn him to hell, can claim "coercion" by his church leaders.

A well-off farmer obliged by rebels or bandits to give "revolution tax", otherwise the latter will burn his farm, can claim "coercion" by the said armed men.

A small businessman obliged by the state to surrender 35% of his gross profit, otherwise the internal revenue guys and the police will harass him if not put him to prison, can claim "coercion" by the state.

In all of the above examples, the degree of coercion varies (and the effect is very personal). If we cannot make a distinction on the degree or severity of those coercions, then we can conclude that the parents of that child are as coercive as Zimbabwe's Mr. Mugabe. Or the wife or the workers are as coercive as Venezuela's Mr. Chavez. Which are NOT the case. The coercion imposed by the parents affects only their children; the coercion imposed by the wife affects only her husband; the coercion imposed by the employees affects only the shop owner. Whereas the coercion imposed by dictators on their citizens and taxpayers affect everyone in their countries, from babies to old people to working-age adults.

The state's coercive power is a given, and I accept it, to enforce the "rule of law" like law against killing and stealing, laws against the bad guys so that the good guys can work and live peacefully. Therefore, I accept taxation to support the state to do this important function. What I object is the danger of a seemingly endless acts of coercion, or acts of taxation, by the state, and leaving very little space, very little leeway, for individuals and their civil society groups to do rationale acts of volunteerism and voluntary exchange of goods and services.

For instance, too many taxes (personal income tax, corporate income tax, doc stamp tax, real property tax, vehicle registration tax, travel tax, estate tax, value added tax, import tax, excise tax, business permit tax, terminal tax, sanitation permit fee/tax, building permit fee/tax, ...), purportedly to allow the state to have plenty of money so it can deliver public education, public health care, public housing, public pension, public nutrition, public banking, public transpo, public toilet, public parks, public basketball courts, everything public, can approach socialism.

So the individual is left with little leeway to pursue personal aspirations. Thus, even if those several dozen taxes are "spent wisely", it is still wrong and oppressive because the individual's needs can be very different from the perceived "needs of the people" by the politicians and those in government.

2. Culture of Impunity

September 13, 2007

Early this month, 5 groups -- Makati Business Club (MBC), Management Association of the Philippines (MAP), Financial Executives Institute of the Philippines (FINEX), Foundation for Economic Freedom (FEF), and another group whose name I cannot recall, came up with a strong statement critisizing the government's "national broadband network" (NBN). Their position paper is entitled "A Growing culture of impunity".

The first paragraph for instance, goes like this:
"We are appalled that the culture of impunity among certain government officials appears to have spread to an extent exceeding that of all past administrations. This impunity seems also increasingly evident in many agencies in government."

Rather strong words, right? I congratulate these groups for being brave enough to say those words and observation.

My observation of the current administration is that the "culture of impunity" is already grown up. It has matured, but still growing, nonetheless.

The current President of the country was caught on several accounts of orchestrating a large-scale cheating in the May 2004 Presidential elections. Among the most graphic proof was her regular calls to an elections commissioner, asking for some 1 million of rigged votes for her. She apologized in 2005 and said that she, being the President of the country and a presidential candidate, calling a commissioner of a constitutionally-independent Commission on Elections, has commited a "lapse in judgement". But she made about 15 calls, so it was "15 lapses of judgements".

The public and political opposition that came out when these proof and issues surfaced was so strong, it was time for her to engage in large-scale magic, if not bribery, of people who have the power to impeach her from office -- many members of the House of Representatives. Despite mounting evidence, the impeachment move was killed by Congress on a simple technicality: that the first (and weakest, the least proof cited) of several impeachment resolutions was to be the basis of Congress action whether to hear it or kill it.

In the last May 2007 elections, the culture of impunity, of large-scale cheating, reared its head again. For instance, I have 2 good friends, female friends, who ran for Congresswoman (one in Mindanao, one in Metro Manila), who have wide popular base, but they were with the opposition. The cheating was so vulgar and graphic, you will shake your head when you see how some of their votes were counted -- for their opponents who are administration candidates! My friend who ran for congresswoman in Metro Manila, after being cheated and beaten, learn one important lesson: if you want to win an election in the Philippines, court the voters, yes, but spend most of your money buying and bribing the government election officials!

The current NBN scandal is one of the many faces of a "mature culture of impunity" under the big government regime. Personally, I will not single out the current administration as the single evil administration. Past administrations have their own shares or "culture of impunity". And I have no doubt in my mind that the next administrations will also have their own brand of "culture of impunity". And why so? Because of the "culture of big government". Big government, especially in countries where the rule of law culture is not strong, always has big opportunities for big-time corruption, big-time robbery, and big--time treachery.

3. Endless Scandals of Corruption

OCTOBER 17, 2007

Mr. Antonio C. Abaya wrote an article, "Bribe It Was" (Standard Today, October 16, 2007):

"...Some 190 congressmen and women were summoned to a breakfast meeting in Malacanang with President Gloria Macapagal-Arroyo last Thursday, Oct. 11. At the end of the meeting, envelopes were allegedly given away to the attendees, each one supposedly containing P200,000 to P500,000 in cash., as “send-off gifts” or “a remembrance” or “help”(See the Philippine Daily Inquirer, Oct 12.)

In addition, each attending congressman and woman was allegedly promised pork barrel allocation of up to P70 million.

The cash envelopes were given away apparently without any vouchers to be signed by the recipients, without any indication from which department the (presumably public) money was coming from, without any instructions on how or for what purpose the money was to be used for, and without any indication that the amounts were to be accounted for or liquidated at a certain date.

In other words, each recipient was free to use the cash, partly or fully, for the coming barangay elections or other local community project, or for his or her own personal needs. Which would be a working definition of a bribe....."

Everything correct that Mr Abaya wrote.
From an unresolved NBN scandal and now this...

PGMA is so dirty, I think a liar worse than Marcos and Erap. I question the sincerity to public service of anyone in government still aligned with her, from Senators to Congressmen to Governors and Mayors to Cabinet secretaries.

I have always believed that my former boss, now DOF Sec. Teves, is clean. But the way his boss is blatantly involving herself in so many scandals, and somehow he can't help but be part of the deny-and-lie defenses, I begin to think that his integrity should go down with her now...

See also:
Rule of Law 1: Entrepreneurship and Government Permits, September 16, 2008
Rule of Law 2: Property Rights and Lefts, March 02, 2009
Rule of Law 3: AIG Bonuses, Government Bail-outs, March 18, 2009
Rule of Law 4: On Thailand Crackdown, April 18, 2009

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