[OPINION] Before it breaks down, we need to keep constitutional order

Vicente V. Mendoza
There are neither absolute rights nor absolute powers in the constitutional order. And a society which fails to observe these norms will ultimately decay from anarchy or atrophy.

(Retired Supreme Court justice Mendoza delivered this speech, edited for brevity, at the Recognition Day of the UP College of Law on June 25, after the conferment upon him by the University of the Philippines of the degree of Doctor of Laws, honoris causa.) 

Today, I would like to talk about the urgent need to take good care of the constitutional order, lest through abuse, misuse, neglect, or indifference, it breaks down. 

By “constitutional order,” I mean the way things have been worked out in our society by which we have been able to live and cooperate with one another in relative peace. 

Like any mortal contrivance, the constitutional order is not of limitless capacity. It cannot abide the stress and strain to which it may be subjected by the relentless testing of the limits of individual rights or the limits of governmental power, or by the tit for tat and pettiness of “little minds.” It cannot survive the transformation of the marketplace and the public forum into dumpsites of noxious ideas and dangerous doctrines or the use of the internet for spreading hatred, gossip, malice, meanness, or falsehood. 

Shakespeare understood the importance of order and the awful consequences of disregarding it. What he said about the order of nature in Troilus and Cressida applies as well to the constitutional order: 

The heavens themselves, the planets, and this center

Observe degree, priority, and place, 

Insisture, course, proportion, season, form,

Office, and custom, in all line of order. . . . .

O, when degree is shaked,

Which is the ladder of all high designs,

The enterprise is sick! How could . . .

The primogenity and due of birth,

Prerogative of age, crowns, scepters, laurels,

But by degree, stand in authentic place?

Take but degree away, untune that string, And hark, what discord follows.

Take but one degree out, and lo, what discord follows! The constitutional order is like the natural order. Shake it up and lo, what upheaval will follow! 

Order is needed because without order there can be no peace. Of course, peace may be brought about by a violent order or by an order maintained by force, but that is not the peace we want. That is the peace of the graveyard. 

What we want is peace which is the result of a constitutional order, the way of life we have chosen and hope succeeding generations will carry on. 

Delicate balance

This order rests on a delicate balance of liberty and authority which requires for its maintenance an alert and vigilant citizenry, to whom public discussion is a public duty and a public office a public trust.

For, indeed, freedom isn’t freedom till it is exercised. Unfortunately, there are some who find freedom to be isolating. They find freedom to be the loss of guidance and support and, for this reason, are willing to exchange their freedom for the security offered by authoritarianism. 

In his time, Claro M. Recto, president of the 1934 Constitutional Convention, railed against the “little minds,” who, he said, needed to be told that after Independence the duty to think for themselves had begun.

Justice Brandeis warned that the greatest menace to freedom is an inert people. Freedom should be an opportunity for realizing one’s dignity as an individual and one’s worth as a member of society. 

On the other hand, governing in a constitutional order requires patience with the slowness of the democratic system in  preference to the speed and efficiency that can be achieved by the comingling powers in one man or group of men.

From this perspective, warnings of a revolutionary government may in some contexts be viewed simply as expressions of discomfort with the constraints of constitutional powers. Actually, there are adequate powers at the disposal of a democratic governor. There are built-in provisions in the constitutional order for flexibility where flexibility is needed. 

For example, the making of midnight appointments is prohibited, but an outgoing President, as caretaker, can make temporary appointments to “executive positions” if the continued vacancies therein would disrupt public service or endanger public safety. 

Martial law may be declared to save the State but not the throne. The Constitution may be amended to serve an enlightened purpose, not narrow, personal or partisan interests. Indeed, tolerance, good-will, good faith, and self-restraint in the exercise of rights and the use of powers are needed to 8 maintain the balance of freedom and authority. 

Decay from anarchy

There are neither absolute rights nor absolute powers in the constitutional order. And a society which fails to observe these norms will ultimately decay from anarchy or atrophy. 

Consider Britain today as reported by The Economist in its issue of June 1-7, 2019. For a long time the picture of a stable legal order, Britain does not seem to be so anymore. Brexit, the decision to pull out of the European Union, which has been roiling British politics for so long a time, has split the country down the middle and plunged it into a constitutional crisis, for which it is said it is “woefully unprepared.” 

The crisis has exposed weaknesses in the constitution which the Britons had thought to be adaptable to any human crisis.

For example, it is unclear from the constitution where sovereignty lies, whether in the monarch or the crown in Parliament. This question is important, because some of those running for PM said that if the EU would not give them what they want, they would pull 9 out without a deal. 

On the other hand, Parliament has voted against no-deal Brexit. As The Economist says in its cover story “Next to Blow: Britain’s Constitution,” “behind this uncertainty lies the fact that Britain’s constitution is a jumble of contradictions scattered across countless laws, conventions and rules.” Members of Parliament, who used to practice self-restraint, have forgotten their caution as they set about reinventing the constitution wholesale without giving much thought to its consequences. 

The conservative British newsmagazine continues: Mr. Blair and Mr. Cameron . . . saw no need to take particular care of the constitution. The constitution was just another archaic part of public life to modernise according to the dehistoricised dictates of the age – or to mess with for short-term advantage. Mr. Cameron is said to have first hatched the idea of an EU referendum over a pizza in Chicago O’Hare airport. 

The duty to care for and nurture the constitutional order is an imperative of our time.

We can practice what the Greeks in ancient times did, by which, through reflection on their shared 10 cultural inheritance, they created a normative universe or nomos. 

What we have to do with our own values, traditions, and culture is to observe them constantly. The practice of civic virtues can develop into a culture of law observance and create a nomos. In turn the nomos can change the growing culture of impunity into a culture of accountability, where every individual will be responsible to his fellowmen for his actions. 

Further, the practice of civic virtues can foster unity by focusing on areas of agreements rather than disagreements, or stressing the narrowness rather than the largeness of the issues that divide us. 

Recent studies in the social sciences show that the things that unite people are more valuable than the things that divide them.

It is said that as Benjamin Franklin emerged from the Philadelphia constitutional convention in 1787, he was asked what they had adopted. His reply was: “A republic – if you can keep it.” When the Bicentennial of the US Constitution was celebrated in 11 1987, the judgment was that by and large the American people – the governors and the governed – had kept the American Republic. 

Reign of law and justice

Would that it also is said a hundred years from now that our constitutional order had endured because it had been in the keeping of a virtuous people. 

For “Government of Laws and Not of Men” as an ideal must still be realized through men – 

Men whom the lust of office does not kill;

Men whom the spoils of office cannot buy;

Men who possess opinions and a will;

Men who have honor; men who will not lie;

Men who can stand before a demagogue And damn his treacherous flatteries without winking!

Tall men, sun-crowned, who live above the fog In public duty, and in private thinking. 

– Josiah Gilbert Holland, God Give Us Men! 

Take good care of the constitutional order and it will take good care of you. Abuse it and it will break down, then anarchy will follow and an authoritarian regime will not be far behind. 

I cannot think of any other class in our society to whom the duty of protecting and taking care of the constitutional order should especially be addressed than the lawyer class. By education and training, they are the special guardians of the Constitution. 

That’s why I am happy to have this opportunity to talk to you, fellow graduates of the UP Law Class of 2019. With high hopes and fervent prayers, we may yet witness in our time the reign of law and justice in our land! – Rappler.com