Our democracy

Filipinos are aware of the imperfections of democracy in this country.

Still, it»s good to be reminded that Philippine democracy is “flawed,”
as described by the London-based think tank Economic Intelligence
Unit in its Democracy Index.

From 54th place last year, the Philippines slipped to 55th spot in the
latest Democracy Index, staying in the category of “flawed”
democracies. The global rankings in 2020 were influenced by
government responses to the COVID pandemic, with many resorting
to lockdowns and other restrictions to contain virus transmission.

In Southeast Asia, the Philippines ranked behind Malaysia (39th

place) and Timor Leste (44th) but ahead of Indonesia (64th), Thailand
(73rd), Singapore (74th), Myanmar (135th), Vietnam (137th) and Laos
(161st).

Last year, the think tank observed that while basic civil liberties are
respected and free elections are held in the Philippines, there are
“significant weaknesses” in other aspects of democracy. These
include “problems in governance, an underdeveloped political culture
and low levels of political participation.”

As in previous years, European countries continued to dominate the

“full democracy” category. Norway topped the global index, followed
by Iceland, Sweden, New Zealand and Finland. The Economist
Intelligence Unit noted that only 8.4 percent of the global population
live in full democracies, while more than a third live under authoritarian
rule.

The 2020 average global score of 5.37 was the lowest since the
Democracy Index first came out in 2006. That was a year that saw
governments also restricting civil liberties to contain the avian flu
pandemic.

Pandemic-related restrictions, however, aren’t the only factors that

placed the Philippines in the category of flawed democracies. The
country’s democratic institutions have long called for strengthening.
Governance and the rule of law need a great deal of improvement.
Last year, as the pandemic raged, Congress shut down the country’s
largest broadcast network, with those responsible unabashedly citing
personal grudges for voting against a fresh franchise for ABS-CBN.
Law enforcement is marked by violent short cuts that are prone to
abuse.

Democracy, as many have pointed out, is a difficult system, but it has

been linked to quality of life and happiness levels. With resolve, flaws
in the system can be corrected.

Now, that democracy is gravely wounded. It is facing

perhaps the direst threat to its existence since the Marcos
dictatorship. Our country’s institutions of governance
and culture of democracy are being fundamentally
assaulted. Philippine democracy is in the dark.

Southeast Asia: Minding

the Gap Between
 Democracy and
Governance
The eleven countries of Southeast Asia vary widely by type of
regime and quality of governance. Those that are the most
democratic are not always the best governed, and the reverse
is also true. Based on evidence from these countries, this essay
explores two propositions—one normative, the other
empirical. The normative argument is this: Good things ought
to go together. Because democracy is more humane than
dictatorship, democracy in Southeast Asia should also do a
better job delivering security, welfare, and other public goods.
The empirical argument, whose validity would bolster the
normative one, is this: Good things do go together. Democracy
and governance, however, do not co-vary in Southeast Asia.
These two good things do not go together. Gaps exist, and they
are worth minding, in theory and in practice.
Despite a long tradition of democratic government and
serious efforts at market-oriented economic reform, the
Philippines remains plagued by poverty, corruption, crime,
insurgency. This stagnant situation is perpetuated by the
traditional exemption of the ruling class from the rule of law,
which has excluded the unresponsive and inefficient
governing elite from the electoral and economic competition
that could force meaningful reform. The persistent inability of
Philippine Governments to bring the elite within the rule of
law is a pervasive obstacle to progress that can only be
removed by focused, sustained political pressure from the
Filipino people.
In electing former Davao City mayor Rodrigo Duterte to office
in the May 2016 presidential elections, Filipinos voted for a
departure from the “straight” path associated with term-
limited president Benigno S. “Noynoy” Aquino III. Pledging to
institute constitutional reforms, crack down on drug use and
crime, and tackle enduring problems of poverty and
inequality, Duterte responded to Filipino voters’ most
immediate and incisive concerns. But Duterte’s disdain for
human rights and democratic checks and balances, combined
with his promises to make changes quickly, may lead him and
others in his administration to circumvent or weaken
democratic institutions and processes. Whether that change
will revitalize or damage Philippine democracy will depend on
the level of support Duterte receives from the Filipino public
as well as the response of elite groups and key institutions.
The three avenues of democratic expressions discussed in the
previous section send a key message — micropolitical reforms may
have limited scope, but they are meaningful in consequence. This
briefing concludes by offering three possibilities for scaling up these
seemingly mundane yet nevertheless powerful expressions of
counter-authoritarian practices.

First, champions of participatory governance at the local level

warrant support, but this must go beyond idealizing individual
leaders. The success stories discussed above are not singlehanded
achievements of heroic politicians, but are built on a cadre of
professionalized and committed civil servants who not only have the
technical skills to manage day-to-day problems of running local
governments but also have the sensibility to listen and engage with
the feedback of ordinary citizens. A critical space for reform,
therefore, rests on normalizing this ethos of civil service and
drawing attention to collective achievements rather than glamorizing
individual leaders.

Second, it is critical for the Philippines’ large population of digital

natives to serve as main defenders of the digital public sphere.
Doing this goes beyond campaigns of digital literacy and education
against disinformation. As the previous section suggests, the
thriving disinformation industry was a beneficiary of a precarious
class of digital workers left with little choice but to work for shady
clients. A polluted public sphere cannot be rescued without
addressing the political economy of disinformation.

Finally, expanding field for electoral competition remains a

challenge for the Philippines. Large-scale efforts at voters’
education remain futile if voters are left with a narrow field of
candidates to choose from. The discourse of voter-blaming does
little to deepen democratic practice. Advocacies on party building
and reform remain relevant today, as well as a more serious
recognition of cultural agents that shape citizens’ views on
democracy and politics. While celebrities and influencers have been
disparaged as insignificant voices in politics, it is worth recognizing
that some of the most successful albeit fleeting campaigns against
authoritarian practice, especially disinformation, are sustained by
supporters of these cultural actors who are key vectors in shaping
public conversation.
As authoritarian practices in the Philippines’ national politics
continue to unfold, increasing attention is needed to consistent,
behind-the-scenes, less spectacular forms of democratic labor.
These, as this primer argues, have the power from preventing fragile
democratic institutions from completely breaking apart.
Is international law any closer to defining the content of a
“right to democratic governance”? International human rights
law instruments do not prescribe a form of governance, but
they do explicitly refer to consistency with the needs of a
“democratic society” when they admit limitations or restrictions
to certain rights and freedoms.  Thus, the Universal
Declaration of Human Rights refers to limitations to rights and
freedoms determined by law and which meet “the just
requirements of morality, public order and the general welfare
in a democratic society.” (UDHR, Article 29(2). The
International Covenant on Civil and Political Rights (ICCPR)
enumerates specific civil and political rights and freedoms, but
only refers to the needs of a “democratic society” when it
speaks of permissible restrictions on press and public
participation in court hearings [ICCPR Article 14(1)],
restrictions to the right to peaceable assembly [ICCPR Article
21], and restrictions to the right to freedom of association
[ICCPR Article 22(2)].  The general limitations clause in Article
4 of the International Covenant on Economic, Social, and
Cultural Rights (ICESCR) refers to “such limitations as are
determined by law only in so far as this may be compatible
with the nature of these rights and solely for the purpose of
promoting the general welfare in a democratic society.”  The
United Nations paints a broad brush on democracy as the
enabling environment for the realization of human rights:
“Democracy, based on the rule of law, is ultimately a means
to achieve international peace and security, economic and
social progress and development, and respect for human
rights – the three pillars of the United Nations mission as set
forth in the Charter of the UN. Democratic principles are
woven throughout the normative fabric of the United
Nations….The UN has long advocated a concept of
democracy that is holistic: encompassing the procedural and
the substantive; formal institutions and informal processes;
majorities and minorities; men and women; governments and
civil society; the political and the economic; at the national
and the local levels. It has been recognized as well that, while
these norms and standards are both universal and essential
to democracy, there is no one model: General Assembly
resolution 62/7 posits that “while democracies share common
features, there is no single model of democracy” and that
“democracy does not belong to any country or region”.
Indeed, the ideal of democracy is rooted in philosophies and
traditions from many parts of the world. The Organization has
never sought to export or promote any particular national or
regional model of democracy.” (UN Guidance Note of the
Secretary-General on Democracy, at p. 2).
There is no shortage of international legal scholarship
examining different facets of “democracy”, whether as a
separate right of individuals or peoples under international
human rights law, or as an emerging norm of governance
under international law.  Thomas Franck wrote in 1992 about
the “emerging right to democratic governance” under
international law, anchored on the notions of “democratic
entitlement” and a “separate and equal status in the
community of nations” – all traceable to the fundamental
human right to self-determination.  In the same year, Gregory
Fox also published a landmark article with the Yale Journal of
International Law, this time on the specific right to political
participation in international law, based on the ICCPR, the
European Convention on Human Rights, the American
Convention on Human Rights, and the African Charter on
Human and Peoples’ Rights. A year later, James Crawford
argued that a “pro-democratic” shift was taking place in
international law, in a much-cited article in the British
Yearbook of International Law.  Susan Marks later developed
the concept of an emerging international law norm of
“democratic governance” in her landmark book The Riddle of
All Constitutions:  International Law, Democracy, and the
Critique of Ideology (OUP, 2003). Jean D’Aspremont’s 2011
EJIL Article observed that certain global events – such as the
rise of non-democratic regimes – could be “cutting short the
consolidation of the principle of democratic legitimacy under
international law.”  But even among these scholars (and many
others, see here, here, here, and here), there is no hard
consensus on the elements of the “right to democratic
governance”. After Stanford’s Larry Diamond originated the
idea of the “global democratic recession” some years ago, the
Economist’s Intelligence Unit (EIU) developed its “Democracy
Index” which measures the state of democratic freedoms in
countries around the world according to five categories: 1)
electoral process and pluralism; 2) civil liberties; 3) the
functioning of government; 4) political participation; and 5)
political culture.  
The Philippines presents an interesting case study on today’s
many scholarly contestations over the “right to democratic
governance” under international law (see among
others Susan Marks’ 2011 EJIL article here, Ignacio del
Moral’s ESIL essay, Johannes Fahner’s 2017  positivist
argument for the existence of the right to democracy here).
As of 2017, the Philippines is ranked 51st among the world’s
democracies in the 2017 Democracy Index as a “flawed
democracy”, expressly finding that “the indefinite declaration
of martial law in the southern state of Mindanao in the
Philippines, and the rule of country’s strongman leader,
Rodrigo Duterte, adversely affected the quality of democracy
in the Philippines.  Mr. Duterte has led the way among the
many Asian countries that are infringing democratic values.”
(2017 Democracy Index, at p. 28). While the Philippines ranks
in the highest percentiles when it comes to the electoral
process and pluralism category, it ranked very dismally in the
categories of the functioning of government and political
culture, and only in moderate percentiles in the categories of
political participation and civil liberties.  It is a jurisdiction that
is unique for having repeatedly and consistently transformed
the UDHR into a legally binding and directly actionable set of
rights under Philippine law (see landmark Philippine Supreme
Court decisions here, here, here, here, here, among others),
and yet it finds itself today seriously contesting visions of
“democratic governance” between Mr. Duterte’s asserted “rule
of law” and the myriad of civil and political liberties issues
raised by local critics (see for example here, here, and here),
as well as abroad (such as the 2018 US State Department
Country Report on Human Rights in the Philippines, the 2017
Report of the Working Group on the Universal Periodic
Review for the Philippines, the 2018 chapter on the
Philippines in Human Rights Watch’s World Report, among
others).  The irony is, both the Philippine government and its
critics claim to act according to a “right to democratic
governance”, even if both parties may have different visions of
what democratic governance is.
The Philippines also stands out in the 2017-2018 World
Justice Project’s Rule of Law Index for having fallen 18 places
to rank 88 out of 113 countries, due to having “the most
significant drops in Constraints on Government Powers,
Fundamental Rights, Order and Security, and Criminal
Justice.” Apart from dominating global headlines for its drug
war and the reported cases of extrajudicial killings (see
government, intergovernmental, and non-governmental
reports here, here, here, and here); the Philippines’ public
withdrawal from the International Criminal Court after the
Prosecutor announced it was commencing a preliminary
examination into the drug war and extrajudicial killings; its
stated foreign policy of identifying with the ‘ideological flow’ of
the People’s Republic of China and its expressed confidence
in the protection of Chinese President Xi Jinping against any
removal of Philippine President Duterte; as well as for its
hardline approach against foreign abuses committed against
Overseas Filipino Workers (resulting in a landmark labor
agreement with Kuwait), the Philippines under the Duterte
administration again drew global headlines following the May
11, 2018 ouster of Philippine Supreme Court Chief Justice
Maria Lourdes Sereno, resulting from an 8-6 decision of her
peers in a quo warranto petition filed by the Executive
Branch’s Solicitor General.  (The full text of Republic of the
Philippines v. Chief Justice Maria Lourdes Sereno is
available here, with separate opinions available here.)  
The Sereno ouster itself is quite fact-specific and
constitutionally complex (with 9 out of the 14 justices
concluding that the former Chief Justice repeatedly violated
the law on asset disclosures; 8 out of 14 justices decreeing
that these violations disqualified the former Chief Justice at
the outset from eligibility; 9 out of the 14 justices finding that
the quo warranto procedure is the appropriate remedy for this
situation and that the 1987 Philippine Constitution did not
contain language exclusively providing for impeachment as
the only way to remove sitting Justices; one of her own
dissenting colleagues openly challenging the former Chief
Justice’s alleged anti-Duterte position when her voting record
in the Court showed support for the Duterte administration in
human rights cases; 6 of the 14 justices refusing to inhibit
from the case despite previously testifying against the Chief
Justice at the House impeachment proceedings), and as of
this writing appears to be the most strident case alleging
the “death of Philippine democracy”.  
Despite innumerable commentaries resounding threats to, or
the end of, Philippine democracy (see here, here, and here,
for example), the Duterte administration repeatedly responds
by pointing to its overall popularity approval and trust ratings
with Filipinos (around 80%) and its sterling economic
performance (around 7% growth rate, the rapidly expanding
middle class heading for upper middle income country status
by 2022, and the reported escape from poverty by 1 out of
every 3 Filipinos), as the true measure of the quality of its
democratic governance and its faithful protection of Philippine
democracy.  In many respects, this resurrects the “Asian
values” debates on human rights and development in the
1990s. 
The Philippines case presents a significant paradox precisely
because of the continuing overwhelming popularity of the
Duterte administration, notwithstanding ongoing reported
challenges to civil and political freedoms.  The United Nations
speaks of democracy as “a universally recognized ideal and is
one of the core values and principles of the United Nations.  It
provides an environment for the protection and effective
realization of human rights”, and prescribes the essential
elements of democracy as the “values of freedom, respect for
human rights, and the principle of holding periodic and
genuine elections by universal suffrage.”  What is most
significant in the Philippines case is that the Duterte
administration has not pulled any punches on debating its
compliance with human rights and the functioning of its
institutions, especially with former human rights lawyer and
current Presidential Spokesman Harry Roque (and current
President of the Asian Society of International Law) vocally
defending the Duterte administration against all allegations of
human rights abuses and even taking on UN Human Rights
Commissioner Zeid Ra’ad Al Hussein (see here, here, here,
and here, among others), and strongly insisting that Philippine
democracy and its institutions remain intact. The Duterte
administration appears impervious to any ‘naming and
shaming’ strategies of human rights groups.  If opinion polls in
the Philippines are to be believed, most of the Philippine
public supporting the drug war and its continuing
casualties appear to place little value on the concerns raised
in the international community, including by 39 Member
States of the UN.  In April 2018, the Philippine Supreme Court
has ordered the Duterte administration to submit all records
and government data on the drug war and the casualties from
extrajudicial killings, which suggest the beginnings of
government transparency and local accountability for the drug
war, beyond the pending ICC complaint that remains
unaffected by the Philippine withdrawal from the Rome
Statute.  If there is indeed a “right to democratic governance”
under international law, the Philippines under the Duterte
administration apparently takes the position that this right is to
be evaluated primarily from the standpoint of the Philippines’
population and the context of its institutions, and not from the
assessments of international observers.
The Philippines case well illustrates ongoing difficulties with
the content and contours of an emerging “right to democratic
governance” under international law.  For one, precisely
because the Duterte administration also articulates defenses
also under the language and discourses of international
human rights law, so much of the question on the
implementation of the “right to democratic governance” turns
on the challenging issue of human rights fact-finding, which,
as an International Bar Association report observes, is a
process also laden with many legal and ethical dilemmas.
Philip Alston and Sarah Knuckey rightly showed in their 2016
book (The Transformation of Human Rights Fact-
Finding, OUP, 2016) that the practice of international human
rights fact-finding has not only become more complex
because of its interdisciplinary nature, investigative scope,
and methodological challenges, but also because there is no
governing code or set of universal international guidelines to
ensure the authoritativeness of international human rights
fact-finding.  This makes international human rights fact-
finders more vulnerable to attacks in the way that the
Philippines under the Duterte administration has cast
aspersions on the veracity of UN rapporteurs (such as Agnes
Callamard), as well as the alleged political agendas of
domestic human rights agencies (such as the
Philippines’ Constitutional Commission on Human Rights). In
the increasing cacophony of social media, the proliferation of
‘instant’ experts, and the devaluing of sober and measured
expert opinions, defenders of the “right to democratic
governance” may also find that they will be increasingly
challenged (if not “trolled” with disinformation or outright
threats), on a case to case empirical basis on any critiques as
to perceived or actual deficits in the right to democratic
governance.  
Second, arguing the “right to democratic governance” under
international law also crystallizes the question of the
authorship over the right and ownership over its assertion – is
the right infringed when the majority of a population insists
that it is enjoying democratic governance, even if others in the
international community argue that this form of “democratic
governance” is still well short of realizing international human
rights standards under the ICCPR and the ICESCR? Scholars
who wrote on the emerging “right to democratic governance”
placed considerable emphasis on the sovereignty and self-
determination of populations, but did not anticipate situations
where there appear to be objective violations of human rights
to which majorities of populations did not object.  If the
majority of Filipinos still approve of the current state of their
democracy, would this operate to condone or cleanse any
acts of their governors as the Filipino people’s assertion of the
“right to democratic governance” over the minority (or
minorities) of those who protest against human rights abuses
and object to Duterte’s self-proclaimed dictatorship?  In my
view, the right, as it exists from international human rights law
instruments, inheres in individuals and not in groups.
Minorities cannot be deprived of the right to an environment
that enables the realization of human rights, simply by
majority fiat.  
Third, the “right to democratic governance” – or at least the
“democratic entitlement” that Thomas Franck wrote of in 1992
– presupposes that all individuals and peoples are duly
informed, educated, and acculturated to the requirements of
human dignity and their baseline universal human rights at the
outset.  That is a hard presumption to make, especially in an
era of polarization on democratic values (including in
the United States and Europe), the rise of illiberal
democracies, and widening inequalities in education across
democracies in the world.  The challenge of international
human rights, after all, still begins with how individuals,
groups, and peoples internalize their understanding of rights
on the basis of their shared human dignity.  The Philippines’
tpolarization on the scope of human rights – and the ongoing
questions on whether or not egregious human rights violations
have been taking place under the Duterte administration –
reflects the disparities in access to information, pragmatist
versus idealist attitudes towards human rights, and the
diminishing relative weights placed on civil and political rights
as against economic, social, and cultural rights.  Duterte’s
political opponents argue the “creeping authoritarianism” of
his government, while the Palace insists that rule of law and
stability prevails in the country with functioning courts and
institutions: “Democracy in the Philippines is vibrant and
strong. All the branches of the government are functioning
and the rule of law thrives. The executive branch respects the
separation of powers and the independence of the other co-
equal branches and doesn’t meddle with their affairs.”  
The question goes back to whose narrative of human rights is
controlling, when any individual asserts the “right to
democratic governance” under international law, and to what
extent international law affords protection for this right.  Giving
flesh to the “right to democratic governance” today requires
deep engagement with what we international lawyers
understand democratic governance to be, in the first place.  It
is over three decades since Thomas Franck first argued the
“right to democratic governance”, and it is well about time that
we reach a consensus on what “democratic governance”
means not just for an abstract sense of an “international rule
of law”, but also to avoid the seeming proliferation of
situations when States can purposefully use the conceptual
ambiguity of the “right to democratic governance” to justify
and belie reported repeated and continuing violations of
international human rights law.  It is only then that human
rights defenders today can succeed in retaking the field.