Asian Perspectives in the Arts and Humanities 1:2 (2011): 17–37

Rule of Law in the Philippines:

The Reproductive Logic of Elite Democracy*1

Fernando P. Gonzaga

Abstract

Confronted by mounting allegations of corruption, electoral fraud, and

abuse of executive power, the government of Philippine President Gloria
Macapagal-Arroyo (2001–2010) called on critics and demonstrators to
cease their dissent and uphold the “rule of law.” Amid this unsettling void
in political authority, the Philippine Supreme Court used its judicial power
to promulgate rules that would enforce the “human rights” of citizens. By
analyzing the speeches of President Arroyo and Supreme Court Chief
Justice Reynato S. Puno (2006–2010), the paper will examine how this
dynamic plays out on the terrain of signification, where large political
bodies, which claim to speak for the multitude of Filipinos, struggle over
the parameters of sovereign power or the idea of what the government
“should do” and “cannot do.”

Keywords: Philippine politics, Arroyo, Supreme Court, sovereign

power, human rights, extrajudicial killings

For most of the initial decade of the twenty-first century, the Philippines
was said to be living under the pall of impunity, haunted by the specter of
a justice that was perpetually withheld. From Gloria Macapagal-Arroyo’s
ascension to the Presidency in January 2001 to the conclusion of her term
of office in June 2010, political activists and news journalists were killed in
increasing numbers, often in broad daylight and by assailants who were never
caught or convicted. Although the Arroyo administration in its official rhetoric
condemned these extrajudicial killings and enforced disappearances, it also

*This paper was presented at the 11th Annual Cornell University Southeast Asia Program
1

Graduate Student Conference in October 2008.

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Fernando P. Gonzaga, “Rule of Law in the Philippines: The Reproductive Logic of Elite Democracy”

refrained from acting decisively. It instead devoted its energies and resources
to combating allegations of corruption, electoral fraud, and abuse of executive
power, frequently calling for its opponents to cease their dissent and uphold
the “rule of law.” To fill this apparent political void, in which the state failed to
protect the “life, liberty, and security” of the populace, the Philippine Supreme
Court adopted an expanded notion of its judicial power in 2007 to promulgate
rules that would enforce the “human rights” of citizens against the abuse of
sovereign power. The default reaction of the press and the populace was to
laud the Supreme Court and its judicial activism for saving Philippine democ-
racy; however, the implications of these actions were actually contrary.

Previous studies on authoritarianism in the Philippine political sphere

had dwelt on the autocratic actions of public officials. An example would be
Alfred McCoy’s essay in the volume Philippine Colonial Democracy on the para-
digmatic despotism of Commonwealth President Manuel Quezon. Few studies
interrogate how, in an elite democracy like that of the Philippines, the work-
ings of authoritarianism can extend beyond the individual and organizational
dimension of presidential decree or state violence. It is this dynamic that I
aim to study, namely, how the sphere of democratic action in the Philippines
translates to the conflict among large political bodies that claim to speak for
the multitude of Filipinos. Seeing the activities of the state as merely part
of the operations of symbolic governmentality, I would like to explore how
resistance against the state can affirm the established order. Through a close
reading of the speeches of President Gloria Macapagal-Arroyo and Supreme
Court Chief Justice Reynato S. Puno, I will examine how this dynamic plays
out on the terrain of signification and affect. This is where the Philippine state
and Supreme Court struggle over the parameters of executive or sovereign
power, and over the idea of what the government cannot do and should do.

In January 2001, the constitutional successor Gloria Macapagal-Arroyo be-

came President of the Republic of the Philippines when a non-violent, popular
uprising called “EDSA Dos” or “People Power II” ousted the incompetent and
corrupt incumbent. Since that moment, however, the Arroyo administration
itself repeatedly faced allegations of corruption and abuse of power. It was
accused of overpricing infrastructure projects, such as the P1.1-billion ($26-
million) Diosdado Macapagal Highway, $503-million North Luzon Railway,
and $326-million National Broadband Network, and of using public funds
such as the Department of Agriculture’s P728-million ($17.3-million) fertilizer

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fund for Arroyo’s reelection campaign. Aside from being involved in several
of these deals, Arroyo’s husband and sons were also accused of laundering
money from illegal gambling operations.

In June 2005 there emerged tapes of wiretapped phone conversations be-

tween Arroyo and a Commission on Elections commissioner during the 2004
national elections; these showed the latter assuring Arroyo of her winning
margin. The majority of her cabinet members resigned and joined the chorus
of opposition politicians, civil society groups, and leftist organizations that
rallied on the streets to demand for her ouster. Due to this threat of another
People Power uprising, combined with surveys consistently showing its wide-
spread unpopularity, the Arroyo administration resorted to illicit means to
ensure its survival. It rewarded loyal friends and allies, even those allegedly
involved in corruption and electoral fraud, with administrative positions. It
bribed members of Congress so that impeachment cases filed against Arroyo
were dismissed as “insufficient in substance.” Equating all progressive civil
society actors with “communists,” Arroyo vilified her opponents as “enemies
of the state.”

With the protests against her administration continuing unabated, Ar-

royo adopted a Calibrated Preemptive Response policy in September 2005,
which enabled the police to break up large assemblies of people. This policy
was later declared unconstitutional by the Supreme Court. In response to
Senate inquiries into the different allegations, she issued Executive Order
464, which required cabinet members summoned before Congress to seek
“prior consent” from the Office of the President before divulging “confidential
or classified information” that could hinder state security or public interest.
While presented as a way of protecting the rights of public officials and the
principle of separation of the executive and legislative branches, it only less-
ened government transparency and accountability.

When disgruntled military officers and soldiers were caught planning

to join the organized protests on the 20th anniversary of the February 1986
People Power revolt, Arroyo declared a State of National Emergency with
Presidential Proclamation 1017, claiming to have uncovered a conspiracy
between the extreme left and extreme right to stage a coup d’état. She de-
nounced the actions of her opponents for hampering the economy, aiding
in the overthrow of democracy, and “sabotaging the people’s confidence

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Fernando P. Gonzaga, “Rule of Law in the Philippines: The Reproductive Logic of Elite Democracy”

in government and their faith in the future of this country.” In blaming the
national media for “recklessly magni[fying]” the situation, she recognized
the potency of signification and representation in shaping public opinion
and the need to control them. PP 1017, whose explicit purpose was to quell
insurrection or rebellion and “to enforce obedience to all the laws and to all
decrees, order and regulations promulgated by me personally or upon my
direction,” temporarily granted the state the unconditional authority to arrest
opposition leaders and militant leftists as well as to close news bureaus that
failed to regulate their content according to the administration’s guidelines
for responsible journalism. The Supreme Court later ruled that such actions
by the state were unconstitutional.

State inaction likewise worked to suppress dissent, such as in the case

of the Arroyo administration’s hesitance to act decisively on the problem
of extrajudicial killings and enforced disappearances. According to Philip
Alston, the United Nations Special Rapporteur on Extrajudicial, Summary
or Arbitrary Executions who visited to the Philippines to investigate, these
extrajudicial killings and enforced disappearances clearly were planned with
the intent to sow fear in dissenters (6); in effect, “narrow[ing] the country’s
political discourse” (Alston 8). His report highlighted the seemingly coinci-
dental link between these killings and disappearances and the state’s counter-
insurgency operations. For example, the report described how, in Nueva Ecija,
Central Luzon, the Armed Forces of the Philippines occupied a barangay (the
smallest administrative unit in the Philippines and the modern equivalent of
the pre-colonial barrio) and attempted to identify the members of the civil
society groups working there, which it uncritically considered to be fronts
for the Communist Party of the Philippines. After constructing an “order of
battle,” the AFP interrogated individuals named on this list and ordered them
to surrender, all without without the assumption of innocence. Many of the
individuals listed in the “order of battle” disappeared or are killed.

The Arroyo administration tried to deal with the challenges to its contin-
ued rule by relying on the consolidation of support from its political allies,
on the application of the law and of violence against combative opponents,
and on the manipulation of symbols to stop ambivalent citizens from form-
ing a collectivity that could topple the state. To preserve itself, the Arroyo
administration needed to contain the force—People Power—that established
its rule in the first place.

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The Arroyo administration attempted to restrict the political action of the

population to non-subversive areas by deploying the police and re-inscribing
the law. The media and anti-administration elements condemned these efforts
as being despotic, while the Supreme Court ruled them to be unconstitutional.
Due to the prevailing negative attitude towards unsanctioned state violence,
the Arroyo administration had to carefully negotiate the thin perceptual
boundary between justified use and blatant abuse of sovereign power. Its
response was constrained by the current global political landscape, which is
shaped by social media, the presence of transnational organizations, and the
general concern for human rights. Unsanctioned state violence no longer had
legitimacy in the public discourse engendered by this political landscape. Fili-
pinos still bore the trauma from the Martial Law regime of Ferdinand Marcos,
in which a curfew was imposed, the press was closed, businesses were seized,
and dissenters were imprisoned, tortured, and had disappeared.

Surveys consistently showed that a large majority of Filipinos were dissat-

isfied with Arroyo’s presidency. To prevent this dissatisfaction from translat-
ing into widespread demonstrations that could include typically unengaged
sectors of Philippine society such as the business community, the Church
hierarchy, and the urban middle class, the Arroyo administration turned to
subtler means of control that worked on the subconscious and affective levels.
Elizabeth Povinelli has written about how the contemporary multicultural
Australian state invoked the popular shame over the injustice of a colonial past
to summon a national-collective will. In a similar vein, the Arroyo administra-
tion drew on the moral and emotional connotations of the rhetoric of the “rule
of law” to confrontchallenges to its survival, although its aim was to prevent
a national-collective will from developing into a potent counterforce.

In one important speech in June 2005 that responded to former President

Corazon Aquino’s call for Arroyo to resign voluntarily due to allegations of
electoral fraud, Arroyo stressed the urgency “to move away from political
bickering to doing what the people of the Philippines expect their leaders to
do and that is get our economy moving and ensure the delivery of essential
services” (Arroyo, “PGMA…resignation”). Claiming to be speaking in the best
interest of the nation, she assumed to know what the majority of Filipinos
want from those whom they have tasked with directing the country. This prac-
tice of interpreting the desires of the multitude as the interests of the majority
could also be found in her speech in November 2007 when military officers

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on trial for rebellion, along with a few opposition politicians, barricaded a

deluxe hotel in Makati City:

It is clear that the actions of those few desperate men reveal just how out of
touch they are with the hopes and dreams of the average Filipino. Filipinos
want political stability, a bright economic future and social justice. The ac-
tions of those misguided men undermine each and every one of the genuine
aspirations of real Filipinos. Instead of working to bring together the nation
by working within our democratic process, their actions merely are fuel for
selfish motives for personal gain. (Arroyo, “President…Armed Forces”)

Again, she claimed to know without any error in interpretation all the “genu-
ine” “hopes and dreams” of “average” or “real Filipinos,” which her “mis-
guided” and “desperate” opponents were “out of touch” with and therefore
ended up “undermin[ing].” She presented this picture of herself as having had
overcome a supposed communication gap between the people and their lead-
ers, which is a fundamental concern in representative democracy. In referring
to the rest of the population as “real Filipinos,” she was suggesting that unlike
her, the political actors who opposed her administration were ensnared in
a narcissistic fantasy. Lumping them together with other dissenters, armed
communists, and terrorists, she tried to deflect the blame for the country’s
problems to this aggregate of her opponents. The contrast made between
their selfishness and her concern for the principles of democracy and the
interests of the majority illustrates that political authority issues in part from
the legitimacy to speak for the multitude.

Here, as in other speeches, Arroyo repeatedly emphasized the significance

of the economy, which she called “the people’s business” (Arroyo, “PGMA…res-
ignation”). She claimed that her administration had successfuly managed this
and the proof was the rise in Gross Domestic Products (GDP), a robust cur-
rency, and growth in foreign investments. Shaping the public perception of the
country’s economic performance was a tool to mitigate dissent.She viewed that
the state’s tasks were to stimulate economic progress and to provide basic ser-
vices to its citizens (Arroyo, “PGMA…resignation”). In establishing an integral
link between the progress of the Philippine economy and the improvement of
the lives of Filipinos, she posited that those who hindered economic progress
were consequently ruining the lives of the majority. When she declared that

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Filipinos desired economic progress above all, she was implying that illegal
activities such as corruption, electoral fraud, and abuse of power were excus-
able as long as the two tasks of the state were met. Repeatedly emphasizing
the significance of the economy allowed her to tap into the shame felt by
many that the country is being left behind by its Southeast Asian neighbors,
into the mythic nostalgia that the economy before Martial Law was second
only in Asia to Japan’s, and into the idealistic aspiration that the Philippines
can develop into a First World country. To prove that the national economy
was performing well under her administration, she constantly cited govern-
ment statistics. These quantitative interpretations of the material conditions
of existence were based on her administration’s own economic measures. In
lamenting the nation’s wasted potential—what Filipino writers have called its
“embarrassment of riches”—Arroyo underscored that the country should not
allow its current political troubles to spoil the opportunity it had at that very
moment to prosper (Arroyo, “PGMA…Peace Rally”). In this way, the telos of
economic progress had become the sole concern for the country’s future, and
the Arroyo administration alone possessed the means to achieve this .

In her June 2005 response to the clamor for her resignation, Arroyo
characterized the actions of protestors as “caus[ing] deep and grievous harm
to the nation because they undermine our democratic principles and the
very foundation of our constitution. Once again, we’re subverting the rule
of law and perpetuating a system that’s broken” (Arroyo, “PGMA…resigna-
tion”). She considered these protestors to be nothing but “destabilizers” and
“troublemakers” and their dissent to be simply “political bickering,” an insur-
mountable barrier that she equated with the “broken” political system that
kept the economy from “moving” (Arroyo, “PGMA…resignation”), impeded
the prosperity of the people (Arroyo, “PGMA…Barangay”), and jeopardized
the future of the country. She quipped: “walang mangyayari kung papayagan
nating manggulo ang mga nanggugulo [nothing will be accomplished if we
allow the troublemakers to cause trouble]” (Arroyo, “PGMA…Barangay”). By
denouncing the broken political system, she gave the impression that she and
her administration stand apart from it and can therefore be spared from any
changes to the political system. In the same speech, in which she congratu-
lated barangay officials for their steadfast support of her administration in
the midst of its crises, she pleaded for the country to focus and to unite: “Ang
kinabukasan ng ating bansa, the future of our country, lies in our unwaver-
ing focus. Dapat nakatutok tayo. Dapat determinado tayo to apply the rule

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Fernando P. Gonzaga, “Rule of Law in the Philippines: The Reproductive Logic of Elite Democracy”

of law… [The future of our country lies in our unwavering focus. We should
be focused. We should be determined to apply the rule of law…]” (Arroyo,
“PGMA…Barangay”). Through these links in signification, the future of the
country seemed to depend on the absence of troublesome dissent, which
was tied to the application of the rule of law. The supposed link between the
country’s future and political acquiescence could likewise be seen in another
speech from 2005. Arroyo reacted to the Senate’s decision to continue its
investigations into electoral fraud despite the House of Representatives’ dis-
missal of the impeachment case against her. Evoking a Manichean narrative
of stark contrasts, she imagined two different “Philippines’”: one “poised for
economic take-off” and the other beset by a “poisoned political system” (Ar-
royo, “PGMA…Kaanak”). Caught in this fallacy of false dilemma, dissent is
equated with a self-serving lust for power, and therefore is always a hindrance
to economic progress.

Arroyo rebuked dissenters not only for obstructing the work of the gov-
ernment and the economy but also for subverting the rule of law and the
principles of democracy, both of which remained undefined abstractions.
According to her interpretation of political reality, these people had “deep[ly]
and grievous[ly]” wounded the nation (Arroyo, “PGMA…resignation”) as
though it were an organism that could be hurt. Such a vivid image allowed
Arroyo to elicit sympathy for her administration and anger against her op-
ponents. Through a series of associations, she tried to establish that freedom
and democracy would not thrive without the constitution and the law (Arroyo,
“PGMA…resignation”; Arroyo, “PGMA…Peace Rally”): “This is a democracy
that’s held together by the Constitution and the rule of law. The Philippines
has fallen into a dangerous pattern where the answer to every crisis is to
subvert due process rather than work within the system. This must stop” (Ar-
royo, “PGMA…resignation”). Arroyo fashioned a picture of the Philippines as
a tragic nation trapped in the “dangerous” repetition of history where crises
are resolved by disregarding the established legal and political system. This
picture was meant to exploit the new wariness of Filipinos about People Power
uprisings, which had simply substituted one set of traditional politicians for
another without transforming the dominant political and social order.

Arroyo asked her opponents to allow “due process” to work and the “rule
of law” to prevail, instead of demonstrating on the streets and demanding
for her resignation, which she viewed as actions that could wreck political

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institutions and cause widespread chaos. Arroyo asserted that in a democracy,

“natural lang ang magkatalong pananaw at posisyon” [conflicting views and
positions are natural]. Conflicting views and positions are supposedly accept-
able within the democratic space as long as they can be settled peacefully.
When they cannot be settled peacefully, the courts are there to deal with them
(Arroyo, “PGMA…NEDA”). This idea of democracy sees the exercise of power
as occuring through discussion, the failure of which only transfers political
action to the juridical arena. Democracy has definite bounds circumscribed
by constitutional law that prevents it from dissolving into chaos. The Arroyo
administration deployed this argument to convince its opponents to halt their
demonstrations and wait for the impeachment process in Congress to unfold.
By being restricted to language and legality the exercise of power could not
threaten the state.

When Arroyo’s allies dismissed the impeachment case against her as

“insufficient in substance” without even seeing the evidence, they closed off
a crucial constitutional recourse. As new allegations about the Arroyo ad-
ministration’s purported illegal activities surfaced, the street demonstrations
continued and the Senate opened investigations into these accusations. When
her critics made allegations that a contract with the Chinese government to
develop a national broadband network was ridden with “kickbacks,” Arroyo
responded by accusing them of peddling baseless fabrications: “Ang paglilitis
hindi dinadaan sa tsismis. Ang paglilitis dinadaan sa ebidensiya. Merong
sapat, merong karapat-dapat na korte para doon” [Trials should not be based
on gossip. Trials should be based on evidence. There are enough mechanisms
for that. There is a proper court for that] (Arroyo, “PGMA…Peace Rally”). She
suggested that instead of disrupting the routines of society with demonstra-
tions or wasting the resources of the legislature on investigations, they should
acquiesce because the appropriate political and legal mechanisms for han-
dling these problems were already in place. In a similar speech in September
2005 explaining why she must “put [her] foot down” and ban protestors from
gathering in public and cabinet officials from appearing before Congress, she
averred that Senate inquiries were being done in aid not of legislation but
of“destabilization,” through “speculation, hearsay and half-truth,” and that
the government was being “disabled by the politics of insult” by “those who
want to grab power” (Arroyo, “PGMA…Kaanak”). The Arroyo administration,
using the desire among the populace for democratic political institutions to
function as they would in First World countries, reshaped the signification

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of the rule of law for the purposes of preserving the state. This logic of politi-
cal survival assumed that establishing the rule of law meant ignoring all the
allegations against the administration so that the state could concentrate on
its principal task of managing the economy. Upholding the rule of law meant
permitting Gloria Macapagal-Arroyo to finish her term as President without
holding her administration accountable for any of its alleged abuses.

The Arroyo administration reduced People Power to the plane of significa-

tion in order to avoid its impact. Appealing to the pride, shame, and frustra-
tion felt by Filipinos regarding their country and its current situation, Arroyo
argued in a speech she delivered on the anniversary of the 1986 People Power
uprising that the change in government her opponents wanted to bring about
through another People Power uprising would only damage the country’s
international reputation:

Yung mundo pinagdiriwang ang Edsa 1. Yung mundo pinayagan ang Edsa
2. Yung mundo hindi patatawarin ang Edsa 3. Sasabihin ng mundo, ano ba
yang Pilipinas? Pinakamagaling na manggagawa sa buong mundo kaya hina-
hanap sa buong mundo tapos parating binabaril ang sarili at hindi matatag?
Kung ganon, sino ang darating na investor dito? [The world celebrated Edsa
1. The world tolerated Edsa 2. The world will not forgive us for Edsa 3. The
world will say, what’s wrong with the Philippines? Because its workers are the
best in the entire world, they are sought after by the entire world. But then it
always shoots itself and does not stand firm. If that’s the case, which investor
would want to come here?]. (Arroyo, “PGMA…Peace Rally”)

Dissent became the scapegoat that must be expelled from the democratic
space so that the foreign investors, upon which the Philippine economy relies
heavily, would not be frightened away. Investors were pictured to be seeking
the rule of law (Arroyo, “PGMA…NEDA”) and an environment suitable for
business, which meant no market fluctuations caused by political turmoil. Ar-
royo thus claimed to speak not only for the Philippine population but also for
the foreign community, with which she supposedly had intimate ties because
she was the head of state. In declaring that the true spirit of People Power is
expressed in the principles of democracy and the rule of law, she attempted
to contain its potential for revolutionary action within abstractions such as
freedom, democracy, and law.

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In assuming that People Power is a legacy of the heroes of the Philippine

Revolution who devoted their lives to unite the nation and fight for its inde-
pendence, the Arroyo administration accused its critics of of degrading their
memory and sacrifice. Addressing a brotherhood of patriots, she praised the
group for exemplifying the virtue of love for nation, which was in stark con-
trast to her opponents: “Talagang importante na yung pagmamahal sa ating
bayan bilang isang bansa, nationhood, ay hindi lamang nandoon sa inyong
mga ninuno, hanggang sa inyo, hanggang dapat sa mga dumarating na henera-
syon. [It is truly important that love for our people as a nation was not merely
present in your ancestors, but should continue to be present in you and in
future generations.]” (Arroyo, “PGMA…Kaanak”). She envisioned a community
of love and patriotism that included the heroes of the Philippine Revolution;
those who continued to dissent were excluding themselves from this.

The Arroyo administration, by employing techniques of signification that

linked popular dissent with economic and political degradation, turned the
country’s troubling conditions into a trauma that could only be overcome by
entrusting the government. Arroyo’s speeches employed certain assumptions,
about how the national economy functioned, that entailed the need to enforce
the rule of law in order to assure economic productivity. This meant that the
government must project to the world a tranquil image of Philippine politics
with no noticeable dissatisfaction and dissent. This involved allowing the
system to work even if a significant number of the populace continued to be
marginalized and oppressed. These techniques of signification severed the
bond between affect and action and transferred political responsibility from
the Filipino multitude to their elected government.

Similar to President Arroyo, the Philippine Supreme Court also harnessed

the potency of signification to redefine its role in government. Given that in
the Philippines the President has the authority to appoint justices without
seeking the approval of Congress, many perceive the Supreme Court to simply
be an extension of the executive branch. Such was the case during the Marcos
dictatorship, when the Supreme Court legally affirmed Marcos’ implementa-
tion of Martial Law and his changes to the Philippine Constitution, thereby
legitimizing his rule. Despite unequivocal reports from the United Nations,
the European Commission, and Amnesty International that held the Philip-
pine government accountable for extrajudicial killings and enforced disap-
pearances of activists and journalists, neither the state nor the congress were

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willing to act decisively against these acts. To compensate for this seeming
political void, the Supreme Court expanded its notion of judicial power, which
Alexis de Tocqueville defined as “the right of the judges to found their deci-
sions on the constitution rather than on the laws” (qtd. in Kommers 53). By
upholding the principle of judicial review, which balances the exercise of power
among the different branches of the Philippines’ American-style political
system, the Supreme Court supposedly provided a counterforce against the
abuse of power by the state. According to Chief Justice Reynato S. Puno the
1987 Constitution granted the Philippine judiciary “more muscular strength
in dealing with the non-use, misuse, and abuse of authority in government”
(Puno, “View from the Mountaintop” 3). Article VIII, Section 1 of the Consti-
tution states that:

Judicial power includes the duty of the courts of justice to settle actual con-
troversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

This expanded notion of judicial authority meant that constitutional rights

were no longer merely “declaratory” in character but to be “enforced” in prac-
tice (Bernas). Section 5 enabled the judiciary to promulgate rules or laws that
would protect and enforce such rights, a power that had previously been re-
served only for legislature. The Supreme Court used its new judicial power as
a means to strengthen the justice system, to demand from the government “a
high standard of official conduct,” and to combat the culture of impunity that
had afflicted the country (Puno, “No Turning Back” 3). This Supreme Court,
organized a National Consultative Summit on Extrajudicial Killings and En-
forced Disappearances in July 2007 and afterwards crafted rules for the writ of
amparo, though it did not have any explicit statutory support in the Constitu-
tion. In contrast to the writ of habeas corpus, which entails the production of
a human body that officials may claim not to have in their custody, the writ
of amparo makes it an obligation for the government to perform actively its
constitutional duty of protecting and enforcing democratic rights.

In its rules, the writ of amparo is depicted as a powerful legal recourse that
can grant deliverance to those who have no other recourse, “a remedy available

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to any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee,
or of a private individual or entity.” Specifying that the writ is applicable not
only to acts but also to threats and omissions, the rules highlight omissions
by public officials or employees. In other words, the writ is designed to ad-
dress the failure to perform the duties of government. The rules of the writ of
amparo also distinguish between “public officials and employees” and “private
individuals and entities” as though the public sphere where politics occurs
were the sole responsibility of the government, while the private sphere which
individuals inhabit were insulated from politics to enable them to pursue life,
liberty, and security unfettered. Here, the boundary that separates the public
from the private is not a matter of community and individual; it is rather the
point at which the political passes into the non-political or apolitical.

The writ requires the government to describe the “steps and actions”
(Philippine Supreme Court 5) it has taken to investigate the unlawful act,
threat, or omission as well as the “manner and conduct” of the investigation
(Philippine Supreme Court 3). All the information and evidence in the pos-
session of the government must be presented to the court. Unlike private
individuals who are expected to demonstrate only “ordinary diligence,” public
officials must prove that they have exercised “extraordinary diligence” in the
conduct of their duty (Philippine Supreme Court 11). Public officials cannot
escape accountability due to the inclusion of anticipatory mechanisms that
prevent them from delaying the legal process or submitting a blanket denial.
Enabling citizens to hold the government accountable for its actions, the
rights claim enacted by the writ of amparo becomes the means by which the
multitude can recuperate their idea about the possibilities of government. It
is the opening through which they can found the conditions for a new politi-
cal community where the contractual relations between the citizens and the
state would work democratically. However, rights claims are not necessarily
emancipatory, Wendy Brown argues, but are rather more ambivalent in that
their character depends on the specific networks of power in which they are
applied. Concentrating attention and resources on holding the government
accountable places the responsibility for protecting and enforcing the auton-
omy of individuals in the state and the judiciary. Enclosed within the private
sphere, where they can freely pursue their interests, citizens relinquish their
capacity for political action to their elected representatives and public officials.
While the efforts made by the Supreme Court to reinforce rights claims may

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Fernando P. Gonzaga, “Rule of Law in the Philippines: The Reproductive Logic of Elite Democracy”

appear to emancipate the multitude from the force of sovereign power, these
efforts may actually achieve the opposite outcome, as can be discerned in the
speeches of Supreme Court Chief Justice Reynato S. Puno.

In a speech regarding the Supreme Court’s defense of the freedom of the

press against the threat of extrajudicial killings and enforced disappearances,
Chief Justice Puno stressed the urgency of confronting the culture of impu-
nity: “Unless and until we do something to submerge this pernicious culture,
these attacks will continue to litter our collective consciousness with corpses
of people who are bearers of truth” (Puno, “Freedom of the Press” 1). The truth
inscribed in the bodies of witnesses is rendered mute when these witnesses
are mercilessly killed. Without justice, their “corpses” remain visible in the
public imagination, but any access to the truth they bear is refused. Only
through the Supreme Court’s deliverance will individuals be able to excavate
the truth and carve out a democratic space in the “collective consciousness.”
The we “who can do something” refers to “the advocates, experts, journal-
ists, and jurists coming from all over the world who share the same concern
over the rampant human rights violations around us” (Puno, “Freedom of
the Press” 1) and not to the multitude of Filipinos against whom these viola-
tions are being committed. It is the task of the former and not the latter “to
strengthen democracy.” With the multitude of Filipinos being portrayed as
powerless, political action seems to be limited to the intervention of “the
advocates, experts, journalists, and jurists.”

Like Arroyo, Puno creates the impression that the Supreme Court stands
above the broken political system and can be the one tasked with bringing it
into proper order. This compelling image is evident in the very first sentence
of “The View from the Mountaintop,” his opening speech at the National
Consultative Summit on Extrajudicial Killings and Enforced Disappearances,
with the first-person I’s Promethean act of “blowing the trumpet call” for the
Summit (Puno, “View from the Mountaintop” 1). The “mountaintop” is sup-
posed to be the vantage point from which the members of the summit can
address the problem “above our prejudices, above our predilections, above
our prejudgments” (Puno, “View from the Mountaintop” 6) and maybe even
above politics. These lines imply in their phrasing that the participants of the
Summit—the political actors in the Philippines who wield the power to make
changes in the order of things—are not part of the problem and can therefore
deal with it objectively and effectively. Although depicted as a democratic

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 Asian Perspectives in the Arts and Humanities 1:2 (2011): 17–37

space free from politics and opportunism, where members of the elite can
act in the best interests of the multitude of Filipinos, the mountaintop could
actually be the transcendent battleground where the real political actors and
factions fight each other for the authority to control the country’s resources.
According to this conception of Philippine democracy, the exercise of power
is restricted to larger institutional bodies—to governmental representatives
designated to stand in for the majority when it is the multitude themselves
who should be engaged in political action.

With no other political actor or institution capable of intervening in the

same manner, deliverance from the “pernicious” problem of extrajudicial
killings and enforced disappearances is to be found in the power of the ju-
diciary. For Puno, the new role given to the judiciary by the 1987 Philippine
Constitution of protecting and enforcing constitutional rights involves a
“revolutionary” (qtd. in Puno, “View from the Mountaintop” 3) transforma-
tion of the Supreme Court “from passivity to activism” (Puno, “View from
the Mountaintop” 3). Unlike elected officials, who are held captive by their
constituencies and dedicate their resources and actions to their reelection, the
judiciary is “politically independent” (Puno, “View from the Mountaintop” 5),
a claim that consequently masks how the legal system is nonetheless part of
a larger network of domination.

Puno’s speeches celebrate human rights as being “the last bulwark” in

the defense of Philippine democracy (Puno, “No Turning Back” 2), an idea
that illustrates how the expectations of the Philippine government have di-
minished to the point where rights claims have become the only recourse left
for terrorized individuals. All those who disregard the value of human rights
are likewise debased as being cowardly or apathetic and therefore politically
and historically insignificant: “They who seek to remain in the safety of the
sidelines when human rights are under assault shall be condemned by history
to irrelevance” (Puno, “View from the Mountaintop” 6). More than that, the
speeches explicitly deify human rights, in the transcendent capacity of which
the multitude must rest their absolute faith and surrender their concrete au-
tonomy: “we are affirming our belief in human rights not only in the abstract;
we are affirming that before the universal altar of human rights there can be
no atheism, nor agnosticism on our part” (Puno, “View from the Mountain-
top” 2). In meticulously establishing the historical continuity of human rights
in his speeches, Puno gives human rights the weight of something that has

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Fernando P. Gonzaga, “Rule of Law in the Philippines: The Reproductive Logic of Elite Democracy”

evolved organically not unlike a living being. Human rights are immutable
and sacred, being also guaranteed by positive law. Because they possess cur-
rency in the eyes of an international community that advocates democracy,
their protection and enforcement can serve to enhance the Philippines’ global
reputation as it strives to become a First World country.

Making human rights claims, however, involves an appeal to a transcen-

dent authority that circumscribes how individuals should behave and act.
Talal Asad asserts that rights claims affirm the authority of the state when
they seek the intervention of the executive branch in defending human rights.
Correspondingly, rights claims affirm the authority of the judiciary when
they depend on the legal system to demand action from the state. According
to this temporal configuration, the exercise of power is constrained to the
filing of rights claims—to the inscription of the visibility of disappearance
and death in the legal record. While corpses are rendered visible, other reali-
ties are naturalized and concealed. Focusing on the urgency to enforce and
protect the constitutional rights of individuals against the abuse of power of
the state effectively abstracts politics from the unequal social and economic
relations that prevail in the Philippines and the conditions that produce and
reproduce these relations (Brown 114). In her reading of Marx’s “On the Jew-
ish Question,” Wendy Brown contrasts represented freedom and actual freedom,
which she equates with the contrast between emancipation and liberation. She
explains that when the state emancipates an individual from a constraint to
his autonomy, it only abstracts him from the conditions that produced this
constraint instead of liberating him from them. The process that resolves in
his mind his “relative lack of freedom, equality, and community” reduces his
actual freedom to “idealist” “pronouncements of freedom,” or in other words, to
an empty signifier (Brown 105). The state grants him represented freedom, while
abandoning him “to the actual powers that construct, buffet, and subject him”
(Brown 107). The desire for autonomy is displaced into the rights-granting
mechanisms of government as the government becomes , to paraphrase
Marx, “the intermediary” between the multitude and their autonomy (Marx
qtd. in Brown 106). To echo Brown, what the state therefore protects and
enforce are not the actual life, liberty, and security of the multitude but their
circumscribed rights to life, liberty, and security. The state and the law set the
terms by which the exercise of power may take place, giving the impression
of democracy but in fact containing political action within the parameters of
the established order.

32
 Asian Perspectives in the Arts and Humanities 1:2 (2011): 17–37

The belief that the problem of extrajudicial killings and enforced disap-
pearances, which are the “spectral remains of the Martial Law regime” (Puno,
“Writ of Habeas Data” 7), can be surmounted by countervailing the force of
sovereign power has led to the misconception that the country exists in a
sacred democratic space that must be defended against structures of tyranny.
Although the state has been condemned for its tendency to abuse its monopoly
over violence, the effects of domination that appear to emanate from it are not
limited to its operations. According to Timothy Mitchell, the state-effect, which
is the perception of the state as the rational source of domination, is actually
part of the system of means by which the established order is maintained.
Nikolas Rose and Peter Miller explain that the different political and social
institutions and processes are interconnected in a field of governmentality,
the network of power in which the practices, discourses, and mechanisms
by which a population and its productive capacities are managed. To avoid
confusion, this configuration could be better understood under the name
symbolic governmentality, in which the entire play of forces and trajectories in
the political sphere, including the circulation of signs and affects, results in
the reproduction and perpetuation of the established order. Instead of saving
Philippine democracy and liberating the Filipino multitude by contesting the
authority of the executive branch, the efforts of the Supreme Court to protect
and enforce the human rights of citizens merely work to re-inscribe dissent
within the prevailing system of domination and exploitation.

The principle of judicial review exercised by the Philippine Supreme

Court is tied to the concept of limited government, which entails that power not
be concentrated in a single individual or institution but dispersed among
the three branches of government in an American-style political model—the
executive, the legislative, and the judicial—through a system of checks and
balances (Kommers 54). Instead of limiting or preventing the concentration
of power, this model actually results in a situation of expanded government,
which concentrates power in a field of governmentality that extends across
the different institutions and processes such that they each become an intrin-
sic component in a self-affecting system of domination and exploitation. For
James Madison, one the drafters of the United States Constitution, the ideal
was that government would be balanced by a “diversity and multiplication of
factions” (Kommers 55), each of which would provide a counterforce to the
other. What happens often, however, is that the exercise of power becomes
constrained to this terrain of competing factions.

33
Fernando P. Gonzaga, “Rule of Law in the Philippines: The Reproductive Logic of Elite Democracy”

Tracing the historical continuity of cacique democracy in the Philippines,

Benedict Anderson renders national history as the endless narrative of how
the ruling classes have expropriated from the multitude the surplus of their
productive capacities and maintained this configuration of hierarchy, domi-
nation, and exploitation. The struggles to more democratically distribute the
resources of the country, struggles that are caught in the seemingly inescap-
able repetition of a history reduced to trauma and indolence, are assimilated in
less subversive form into the established order. From Anderson’s perspective,
upholding the rule of law means preserving the established order, which has
guaranteed the Filipino oligarchy its political and economic dominance. Seen
this way, the rule of law becomes an imagined “democratic space,” which af-
fords “room for manoeuvre” to the larger political bodies or factions—such as
the politicians, the technocrats, the military, the communists, the oligarchy—
that compete with one another for control over the production and exchange
of resources (Anderson 25). Anderson likens this regime of elite democracy,
which removes the multitude of Filipinos from the political equation, to the
regulatory logic of the casino:

In any well-run casino, the tables are managed in the statistical favour of
the house. To keep drawing customers, the owners must provide them with
periodic, even spectacular successes. A win is a splendid confirmation of the
player’s skill and heaven’s favour. A loss demonstrates his/her misfortune or
ineptitude. Either way, it’s back to the tables as soon as possible. So with the
blackjack of cacique democracy. Each local triumph for reform promises a
rentier future; each loss signals miscalculations or ill luck. At the end of the
week or the year, however, the dealer is always in the black. (30)

The apparent unpredictability of gambling in the casino is paralleled with

the perceived contingency of participating in Philippine democracy, where
every Filipino seems to be embraced with the promise of equal freedom and
opportunity. Any ordinary citizen can run for political office in local and
elections where a large majority regularly votes. The uncensored national
media are allowed free rein to dictate the news agenda even if the issues ad-
dressed may be unfavorable to the state. Democracy in the Philippines bears
only the semblance of vibrancy, however. According to Anderson’s account,
although many ordinary Filipinos may be dissatisfied with the unchanging
reality that a privileged minority has more wealth and power than they do,

34
 Asian Perspectives in the Arts and Humanities 1:2 (2011): 17–37

they are assuaged and contented by the few opportunities they are granted for
improving their lives. Hope arrives in the form of reforms made to the system,
which fail more often than they succeed. Because such concessions belong to
the reproductive mechanisms of the established order, they never threaten its
existence. This semblance of democracy reinforces the prevailing structures
of hierarchy, domination, and exploitation by concealing them:

It disperses power horizontally, while concentrating it vertically; and the for-

mer draws a partial veil over the latter… Precisely the competition is violently
real, it is easy to be persuaded to cheer for, as it were, Arsenal or Chelsea,
without reflecting too hard on the fact that both are in the First Division,
and that one is watching the match from the outer stands, not playing in it.
(Anderson 31)

Using a football analogy, Anderson exposes the logic of exclusion that regu-
lates Philippine politics. As the responsibility for directing the country’s fu-
ture is transferred to a vanguard of leaders and intellectuals, political action
is limited to a privileged minority while the rest of the populace is excluded
from transforming the conditions of reality.

Instead of being “circulating and relational,” the exercise of power is “sup-

pressed” and “congealed” (Brown 112) in conflicting political institutions and
factions. In this prevalent situation, the desire of the multitude of Filipinos
for democracy can only be articulated and recognized as constitutional rights
claims, which affirm the transcendent authority of the state and the law and
restrict the exercise of power to language and legality. Through its inscription
in a governmental system of domination and exploitation, the mode of justice
that can overcome the culture of impunity becomes the means of containing
the productive capacities of the multitude for autonomy and transformation.
If a People Power revolution were to intervene in the legitimization and repro-
duction of the system as an immanent event of historical alterity, it would not
simply introduce modifications to the leadership or machinery of the prevail-
ing governmental regime but engage in the transformation of the very culture
of everyday life that perpetuates the established order of elite democracy.

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Fernando P. Gonzaga, “Rule of Law in the Philippines: The Reproductive Logic of Elite Democracy”

Works Cited

The 1987 Constitution of the Republic of the Philippines.

Alston, Philip. Mission to the Philippines: Report of the Special Rapporteur on Extrajudicial, Summary
or Arbitrary Executions. United Nations Human Rights Council. Geneva: United Nations,
2007. Print.
Amnesty International. Philippines: Human Rights, Political Killings and the Peace Process. London:
Amnesty International, 2006. Print.
Anderson, Benedict. “Cacique Democracy in the Philippines: Origins and Dreams.” New
Left Review 169 (1988): 3–31. Print.
Asad, Talal. “What Do Human Rights Do? An Anthropological Enquiry.” Theory & Event 4.4.
Web. 20 Mar. 2008. <http://muse.jhu.edu/journals/theory_and_event/v004/4.4asad.
html>.
Bernas, Joaquin G. “The Argentinian Amparo.” Sounding Board. Philippine Daily Inquirer 10
Sep. 2007. Web. 18 Dec. 2007. <http://opinion.inquirer.net/inquireropinion/columns/
view_article.php?article_id=87599>.
Brown, Wendy. States of Injury: Power and Freedom in Late Modernity. Princeton, NJ: Princeton
U.P., 1995. Print.
Kommers, Donald P. “Judicial Review: Its Influence Abroad.” The Annals of the American
Academy of Political and Social Science 428 (Nov. 1976): 52–64. Print.
Macapagal-Arroyo, Gloria. Executive Order No. 464. 26 Sep. 2005. Web. 1 May 2008.
<http://www.ops.gov.ph/records/eo_no464.htm>.
———. “PGMA’s Message on the earlier statement of Former President Corazon Aquino for
PGMA’s voluntary resignation.” Office of the President, Republic of the Philippines.
8 Jul. 2005. Web. 1 May 2008. <http://www.op.gov.ph/speeches.asp?iid=676&iyea
r=2005&imonth=7>.
———. “PGMA’s Opening Statement during the NEDA Board Meeting.” Office of the
President, Republic of the Philippines. 18 Sep. 2007. Web. 1 May 2008. <http://www.
op.gov.ph/speeches.asp?iid=1095&iyear=2007&imonth=9>.
———. “PGMA’s Speech during the 1st Regional Congress of the Liga ng mga Barangay
Region III.” Office of the President, Republic of the Philippines. 22 Sep. 2005. Web. 1
May 2008. <http://www.op.gov.ph/speeches.asp?iid=705&iyear=2005&imonth=9>.
———. “PGMA’s Speech during the 8th Anniversary Celebration of the ‘Kaanak 1896.’” Office
of the President, Republic of the Philippines. 30 Sep. 2005. Web. 1 May 2008. <http://
www.op.gov.ph/speeches.asp?iid=707&iyear=2005&imonth=9>.
———. “PGMA’s Speech during the Peace Rally at the Capitol grounds.” 25 Feb. 2008. Web. 1
May 2008. <http://www.op.gov.ph/speeches.asp?iid=1198&iyear=2008&imonth=2>.
———. “President Gloria Macapagal-Arroyo’s speech during the 72nd Founding Anniversary

36
 Asian Perspectives in the Arts and Humanities 1:2 (2011): 17–37

of the Armed Forces of the Philippines.” 21 Dec. 2007. Web. 1 May 2008. <http://
www.op.gov.ph/speeches.asp?iid=1168&iyear=2007&imonth=12>.
———. Proclamation No. 1017. 24 Feb. 2006. Web. 1 May 2008 <http://www.news.ops.gov.
ph/proc_no1017.htm>.
Mitchell, Timothy. “Society, Economy, and the State Effect.” State/Culture: State-Formation
after the Cultural Turn. Ed. George Steinmetz. Ithaca, NY: Cornell, U.P., 1999. 76–97.
Print.
Philippine Supreme Court. “The Rule on the Writ of Amparo.” Manila: Supreme Court,
2007. Print.
Povinelli, Elizabeth A. “The State of Shame: Australian Multiculturalism and the Crisis of
Indigenous Citizenship.” Critical Inquiry 24 (1998): 575–610. Print.
Puno, Reynato S. “Freedom of the Press: A Touchstone of Democracy.” International
Conference on Impunity and Press Freedom. 27 Feb. 2008. Address.
———. “No Turning Back on Human Rights.” 19 th Silliman University Law Alumni
Association General Assembly and Alumni Homecoming. 25 Aug. 2007. Address.
———. “The View from the Mountaintop.” National Consultative Summit on Extrajudicial
Killing and Enforced Disappearances. 16 July 2007. Address.
———. “The Writ of Habeas Data.” UNESCO Policy Forum and Organizational Meeting
of the Information for All Program, Philippine National Committee. 19 Nov. 2007.
Address.
Rose, Nikolas and Peter Miller. “Political Power beyond the State: Problematics of
Government.” The British Journal of Sociology 43.2 (1992): 173–201. Print.
Fer nando P. Gonzaga is a PhD Candidate at t he Universit y of
California-Berkeley’s Rhetoric program who specializes in political
thought, visual culture, and Southeast Asian political culture. His book,
Globalization and Becoming-nation: Subjectivity, Nationhood, and Narrative in
the Period of Global Capitalism (University of the Philippines Press, 2009),
examines how the passage from despotic nationalism to transnational
capitalism is represented in contemporary Filipino novels. His dissertation,
Monsoon Marketplace: Inscriptions and Trajectories of Consumer Capitalism in
Singapore and Manila, attempts to map a genealogy of commercial and leisure spaces
that have captivated the popular imagination at specific historical junctures.

37