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SoD Philippines Chapter1

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  Extracted from Philippine Democracy Assessment. Rule of Law and  Access to Justice © International Institute for Democracy and Electoral Assistance 2010. International IDEA, Strömsborg, 103 34 Stockholm, SwedenPhone +4! !# 3$ 00, %a&' +4! !(0 (4 ((E!mail' in)o*ideaint eb' wwwideaint  1 Introduction and Framework  1.1Framework on the Rule of Law andAccess to Justice An inventory of the rule of law by academia andpractitioners produced by the Hague Institute for theInternationalisation of Law (HiiL) in 2007 represents aremarkable piece of literature. The result of a high leveldiscussion among experts, it is an interesting approach tothe rule of law and offers an attractive framework for anassessment of democracy in the Philippines. The inventory makes it clear that the rule of law is notonly anchored on the orthodox notion of the rule of lawas identified with a particular set of institutions, such asthe judiciary, but also involves the values and ends thatthis institutional set serves. The rule of law is a complexconcept—more complicated than the notion of constitutional state in which the relations defined arebetween the state and the citizens. The rule of law pointstoward the ‘relation among citizens’, or what KleinfeldBelton distinguishes as ‘end-based definitions of the ruleof law and institution-based definitions’ (HiiL 2007: 14).For such a definition, some guiding principles on how topromote the rule of law are in order, these being: (a) forany rule of law end, all institutions must be reformed; (b)achieving rule of law ends requires political and cultural,not only institutional, change; (c) not all work to reformlegal institutions is rule of law reform; and (d) rule of law 1  Philippine Democracy Assessment: Rule of Law and Access to Justice 2 3 Introduction and Framework ends are in tension, particularly in poor societies or societieswith a weak rule of law. Following these principles, whatthen should be examined are the ends of the rule of lawrather than the institutions per se (Kleinfeld Belton 2005:22). Thus, there are competing definitions of the rule of law. This assessment points out the complexity of the definitionof the rule of law and the need for a framework withwhich to evaluate it. On the one hand, the audit hopes tofocus on the rule of law as embodied in institutions;however, it also has to deal with the political and culturaltexture of the rule of law. These are crucial inunderstanding why the public’s confidence and trust ininstitutions are important, and why the ends of theseinstitutions, such as the promotion of human rights andequality, and the fight against terrorism or humantrafficking or drug trafficking are equally significant.Moreover, while the rule of law, just like democracy,travels and has a universal principle, it has a specific locusand context. In the Philippines, a developing society,institutions are formally present yet are substantiallyweak and sometimes dysfunctional. Previously completedassessments on Philippine democracy (that is, on electionsand political parties, on corruption, and on citizens’economic and social rights) bear this out. It is thereforeimportant that this assessment takes into account bothinstitutions (and their performance) and citizens’ accessto their rights to the rule of law and justice. This allowsthe assessors to capture both the form and the substanceof the rule of law and its essence, which is democracy.Furthermore, it should be noted that pre-colonialPhilippine society left as a legacy an indigenous systemthat allows communities to gain access to justice basedon customary laws and tradition. Such a system continuesin the communities of indigenous peoples, and the modern justice system and the rule of law should reckon with theindigenous practice. The International Commission of Jurists (ICJ) probablyholds the most popular formulation of the rule of law, aspointed out by Dworkin. Dworkin refers to the 1959 ICJconference in which the commission stated that the “. . . function of the legislature in a free society underthe Rule of Law is to create and maintain the conditionswhich will uphold the dignity of man as an individual. This dignity requires not only the recognition of hiscivil and political rights but also the establishment of the social, economic, educational and cultural conditionswhich are essential to the full development of hispersonality” (Raz, 1979). This conception . . . does notdistinguish . . . between the rule of law and substantive justice; on the contrary it requires, as part of the idealof law, that the rules in the book capture and enforcemoral rights. (Dworkin 1985: 11-12)  The discourse on the rule of law continues. On the onehand, Hayek and Raz contend that the rule of law ‘meansthat government in all its actions is bound by rules fixedand announced beforehand—rules which make it possibleto foresee with fair certainty how the authority will useits coercive powers in given circumstances, and to planone’s individual affairs on the basis of this knowledge.(And that) . . . the rule of law means literally what it says:the rule of laws. Taken in its broadest sense, this meansthat people should obey the law and be ruled by it.’ (Raz1979: 210) On the other hand, while the existence of therule of law is ideal, it is important to highlight the contentof the laws that rule. The ideal of the rule of law is notnecessarily the same as the ideal of substantive justice. The connection between these two ideals is recognized byhighlighting the rule of law and the extent to whichcitizens obtain access to justice within such rule of law.Indeed it is commonsensical that the rule of law is assessedside by side with substantive justice or access to justice. Tamanaha (2006), in the Hague Institute for theInternalisation of Law (HiiL) inventory of the rule of law, articulates the so-called thin and thick complexionsof the rule of law in which the conceptions of the rule of law range according to categories, generally from theformal version to the substantive one. The argumentcontinues as to which one is better. Take note of theconception as stated in table 1.1.  Philippine Democracy Assessment: Rule of Law and Access to Justice 4 5  Table 1.1  Texture of the rule of law and democracy FormalversionsThinThick1. Rule by law2. Formal legality3. Democracy +- law as instrument- general prospective,legalityof governmentclear, certain- consentactiondeterminescontent of lawSubstantive4. Individual rights5. Right of dignity6. Social welfareversions- property, contract,and/or justice- substantiveprivacy, autonomyequality, welfarepreservation of community Source:  Adapted from Walter Bryce Gallie, ‘Essentially ContestedConcepts’, Proceedingsof theAristotelian Society , 56 (1956) , pp. 167-98 Going by this reasoning, there is a caveat to the rule of law: it may exist where human rights—civil, political,economic, social or cultural—are not necessarily respected.Furthermore, it may also exist in an undemocratic system.In an assessment of democracy using the lens of the ruleof law, it is being sensitive (and sensible) to examine theprinciple of democracy, and particularly the access of citizens to justice, within the rule of law. In other words,it is important that in a democracy assessment of therule of law, everyone—institutions, agencies, rule makers,decision makers, and citizens—agree on the definition of the rule of law. Moreover, it is important that values suchas legal certainty, formal equality and prevention of theuse of arbitrary power are upheld through the laws thatrule. It is also understood that in the Philippine context,as in other societies, the communication and theconversation on these values and the rule of law continueas democracy is constantly in the process of building andstrengthening. The ‘thick’ conception of democracy andhuman rights is by itself complex and could beconceptually contested.On the one hand, the rule of law underscores thepredictability of rules and procedures, the independenceof procedures, the accountabilities of office and of thepersons holding such office, the boundaries and limits of power and discretion, and the consistency in the provisionsof the constitution and statutes, among others. On theother, access to justice underlines the accessibility of justiceto the citizen on the street. Accessibility is measured by anumber of benchmarks, including: (a) the affordabilityof the judicial proceedings, the cost of bringing a case tocourt, and the efficiency of the court so that the proceedingsdo not wear out those involved and drain their resources;(b) the use of an intelligible language in court and judicialproceedings; (c) the use of sufficient and effectivemechanisms of information for the citizens; (d) the showingof respect for an indigenous justice system consideringethnicity, religion, gender, and class; and (e) the provisionof mechanisms for redress of grievance andmaladministration of justice. The rule of law and access to justice go hand in hand. If not, the essence of democracy in the judicial arena isdoubtful. In a developing society such as the Philippines,access to justice revolves around and involves especiallythe basic sectors (Buendia 2001). In some cases, wherethe basic sectors fail to access justice through theappropriate institutions, they, alongside non-governmentalorganisations and the media, resort to moral and politicalpressures and similar modes of articulation for justice inother venues including international channels. Sucharticulation is also a means to access justice. This assessment assumes that the baseline conception of the rule of law, which is the ‘thin’ conception, essentiallyrefers to predictability, formal equality and the preventionof the use of arbitrary power. This has value in itself,especially where the society and government do not meetall the requirements of democracy and human rights. Thisis not to say, however, that the rule of law is confined tothe ‘thin’ conception. It is critical to examine the widervalues of rights, such as the right to participate(democracy), and human rights as enshrined ininternational instruments and to which the Philippinesformally subscribes. Shuttling between the ‘thin’ and the‘thick’ conceptions of the rule of law and considering Introduction and Framework
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