My column for today was inspired by Mahar Mangahas’ column, The important right of civil disobedience, which had these interesting findings, based on the 2004 Survey on Citizenship of the International Social Survey Program, which makes possible a comparison of Filipino attitudes and behavior to that of other peoples, particularly in our part of the world. As Mangahas digests it,
In a recent talk on “Surveying the Social Volcano” for CEOs and other opinion leaders at the Inquirer, I presented cross-country data showing Filipinos with: (a) a high score in seeing widespread corruption in the public service; (b) a very low score in seeing elections as honest; (c) a very low score in having personally joined a public demonstration; and (d) a very high score in putting importance to the right of civil disobedience…
…The outstanding finding from this survey of democratic rights is that, whereas we Filipinos, compared to other peoples of the world, care slightly less about a minimum living standard, the rights of minorities, the right to equal treatment, the right to be heard, and the right to participate, at the same time we care much, much more than others do about the right of civil disobedience.
Only four countries have higher scores than the Philippines on the importance of civil disobedience, all from the Eastern bloc: Bulgaria (79), Poland (72), Slovakia (71) and Latvia (65). Russia’s score is 57. Germany’s high score of 52 may be due, said a German visitor, to the national memory of having acquiesced to immoral government policies in Nazi times.
Will the social volcano erupt? In my Inquirer seminar, I said that the eruptions of 1986 and 2001 proved that “the social volcano” can be awakened. During “Juetenggate,” President Erap was (slightly) popular, while then-Vice President Gloria Macapagal-Arroyo was unpopular for having deserted him. Public opinion on Erap was still divided during the impeachment trial. EDSA People Power II was triggered by the unscripted refusal to open the “second envelope, which nine out of 10 Metro Manilans saw on live TV. The “Hello Garci” crisis is worse. For three years, President Arroyo has been very unpopular, while her VP has been (relatively) popular.
The ISSP citizenship-survey data suggest that a social explosion would be driven less by the Filipinos’ inclination towards rallies than by their insistence on the right of civil disobedience. The timing of such an explosion, like that of any volcano, is unpredictable.
Therefore, plan for the Black Swan moment! Wuzzat? Read Fear of a Black Swan: Risk guru Nassim Taleb talks about why Wall Street fails to anticipate disaster, which will spare you having to buy the book (but you should, anyway).
Relevant readings are Basic Concepts of Satyagraha: Gandhian Nonviolence and What is Satyagraha? both of which I quoted in my column.
Also, extracts from Letter from a Birmingham Jail, in which Martin Luther King laid out non-violent resistance:
In any nonviolent campaign there are four basic steps: 1) Collection of the facts to determine whether injustices are alive. 2) Negotiation. 3) Self-purification and 4) Direct action.
Concerning the last, he wrote,
You may well ask: “Why direct action? Why sit-ins, marches, etc.? Isn’t negotiation a better path?” You are exactly right in your call for negotiation. Indeed, this is the purpose of direct action. Nonviolent direct action seeks to create such a crisis and establish such creative tension that a community that has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. I just referred to the creation of tension as a part of the work of the nonviolent resister. This may sound rather shocking. But I must confess that I am not afraid of the word tension. I have earnestly worked and preached against violent tension, but there is a type of constructive nonviolent tension that is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, we must see the need of having nonviolent gadflies to create the kind of tension in society that will help men to rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. So the purpose of the direct action is to create a situation so crisis-packed that it will inevitably open the door to negotiation. We, therefore, concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in the tragic attempt to live in monologue rather than dialogue.
He then discusses, at -beautiful- length, the question of the law, the dilemma at the heart of civil disobedience:
One may well ask: “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws: There are just and there are unjust laws. I would agree with Saint Augustine that “An unjust law is no law at all.”
Now, what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority, and the segregated a false sense of inferiority. To use the words of Martin Buber, the Jewish philosopher, segregation substitutes and “I-it” relationship for an “I-thou” relationship, and ends up relegating persons to the status of things. So segregation is not only politically, economically and sociologically unsound, but it is morally wrong and sinful. Paul Tillich has said that sin is separation. Isn’t segregation an existential expression of man’s tragic separation, an expression of his awful estrangement, his terrible sinfulness? So I can urge men to disobey segregation ordinances because they are morally wrong.
Let us turn to a more concrete example of just and unjust laws. An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand a just law is a code that a majority compels a minority to follow that it is willing to follow itself. This is sameness made legal.
Let me give another explanation. An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because they did not have the unhampered right to vote. Who can say that the legislature of Alabama which set up the segregation laws was democratically elected? Throughout the state of Alabama all types of conniving methods are used to prevent Negroes from becoming registered voters and there are some counties without a single Negro registered to vote despite the fact that the Negro constitutes a majority of the population. Can any law set up in such a state be considered democratically structured?
And he then says,
…There are some instances when a law is just on its face and unjust in its application. For instance, I was arrested Friday on a charge of parading without a permit. Now there is nothing wrong with an ordinance which requires a permit for a parade, but when the ordinance is used to preserve segregation and to deny citizens the First-Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.
I hope you can see the distinction I am trying to point out. In no sense do I advocate evading or defying the law as the rabid segregationist would do. This would lead to anarchy. One who breaks an unjust law must do it openly, lovingly… and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.
Of course, there is nothing new about this kind of civil disobedience. It was seen sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar because a higher moral law was involved. It was practiced superbly by the early Christians who were willing to face hungry lions and the excruciating pain of chopping blocks, before submitting to certain unjust laws of the Roman empire. To a degree academic freedom is a reality today because Socrates practiced civil disobedience.
As did Rizal. And he then says, of those praising the police for their non-violent handling of protesters,
It is true that they have been rather disciplined in their public handling of the demonstrators. In this sense they have been rather publicly “nonviolent”. But for what purpose? To preserve the evil system of segregation. Over the last few years I have consistently preached that nonviolence demands that the means we use must be as pure as the ends we seek. So I have tried to make it clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or even more so, to use moral means to preserve immoral ends. Maybe Mr. Connor and his policemen have been rather publicly nonviolent, as Chief Pritchett was in Albany, Georgia, but they have used the moral means of nonviolence to maintain the immoral end of flagrant racial injustice. T. S. Eliot has said that there is no greater treason than to do the right deed for the wrong reason.
Then what? The problem, it seems to me, is that we have yet to fully comprehend non-violent resistance, because civil disobedience for us consists in thumbing our noses at officials but not pursuing collective action. We will gladly puncture the pretenses of the powerful but in as risk-free a manner as possible; sustained confrontation, on the other hand, we leave to others to pursue.
Including, ironically, institutions.
I didn’t encounter it at the time, but Rep. Teodoro L. Locsin’s advice to the Supreme Court last year, which you can read in Just Do It, is interesting, taking the era of Martin Luther King into account:
IMAGINE a situation where killings and disappearances are taking place. The victims form a distinct and disliked, though by no means unpopular political grouping. In fact, they have the most populist agenda of any other. The victims are not prominent members of their persuasion. They are not even zealous militants or even militants at all. They are mere rank and file; social workers in short. The crimes show a pattern pointing to security agents as the perpetrators. More than a pattern, it is the conclusion of a presidential commission. The authorities are reluctant to investigate the murders and disappearances. More, the authorities are openly dismissive of the problem. Gratuitously, yet with a knowing air, they deny the crimes are taking place. Yet, contradictorily, they blame the crimes they deny are taking place at all on the victims themselves, adding that in a sense the victims have only themselves to blame for adhering to a cause detested by the military. “They are begging for it” is heard from their lips. And yet the Constitution that covers both victims and suspects protects freedom of belief without any distinction; the last distinction having been erased by the repeal of the antisubversion law.
Alabama in the 1960s? No. US President Johnson sent in US marshals to protect the victims and enforce their rights. The hypothetical situation might well be the Philippines today under a government that, out of complicity with or fear of the perpetrators, will do nothing, leaving only a newly elected Congress, already too absorbed in its forthcoming perks to pay back the cost of its recent election, to take any serious notice let alone action. Leaving a Court anxious not to say alarmed but constrained by the passive role to which judicial tradition and the constitutional text confine it.
And he then delves into the problem that arises when the law is in the hands of those unwilling to enforce them:
If we supposedly live under a rule of law but the principal laws are not systematically left unenforced in key cases by those principally charged to enforce them, why have the Supreme Court at all? The Nazi courts are said to have had a near fine record in purely commercial cases, unmarred even by anti-Semitism since all the Jews had already been relocated. These Nazi precedents may still be standing and, if not openly cited, nonetheless consulted for their illumination on commercial and civil laws. Precedents from Japanese Imperial courts are deeply respected. Yet neither society, more vibrant and coherent even than the democratic ones that succeeded them, is yet deemed to have had a genuine rule of law or judicial system.
Strictly speaking, this is not a problem for the passive receptacles of cases, as the Court modestly describes the judicial function – when and if, that is, the executive brings them before the courts. But the problem is precisely an executive that sits on its hands and thereby stains them with these crimes. As a result, by the Court’s own initiative, the weakest and least dangerous branch of government must pit itself against the most powerful and lethal; the circumspect power of deliberation against the brazen power of the sword, with the petty power of the purse counting pennies on the side.
To be brutally honest, Congress can have no fruitful role to play in this dilemma, if it were expected simply to craft more new legislation to curb violations of constitutional rights. From where I sit, thickening the thicket of legislation may confer a passing comfort for the small shade that the shrubs may give, but it will not result in the smallest progress in addressing the utter disregard of such legal safeguards as the Constitution and past congresses have already put in place.
The solution, Locsin proposed, was judicial activism:
What seems to be doable is for the judiciary to be quicker and more aggressive in addressing human rights cases even under existing rules where legal standing and actual controversy exist. Give the executive no leeway to tell the families of the victims, “So sue us and see how far that gets you.” A recent Court of Appeals decision shows how far. Or rule quickly and with finality – as the Court just did after almost a year – on the validity of the arrest and detention of Leftist lawmakers; and use the occasion of its ruling to express in the strongest terms the Court’s uneasiness if not alarm over the human rights situation in the country. There is a limit to circumspection and the Court can, in practical terms, really, do no wrong.
In short, strike down offensive executive actions as fast as they are correctly protested – I emphasize the qualifier “correctly”‚ – and the executive will get the message and the citizenry, feeling reassured that effective recourse lies somewhere, will be further emboldened to do what is firstly their responsibility and not the Court’s: stand up for their rights. That will answer the criticism from the groups representing the victims that to protest is to step forward and hang around with a bulls-eye painted on one’s chest.
Besides, if the Court became aggressive, on whom would discredit fall if the Court’s orders are ignored – the Court which makes no pretense of power or the executive which willfully neglects to use its power as the Constitution mandates?…
…In this regard, I invite the Court’s attention to the literature on the judicial activism of the Israeli Supreme Court which has established constitutional norms where none existed – such as freedom of expression, press, association and public assembly, as well as equality regardless of Palestinian race and religion; going to the extent, according to a paper by Ariel Bendor, of enforcing good government. Even in cases of national security, the Israel Court has proscribed coercion and torture and the detention of a Muslim community in negotiating the release of Israeli hostages. “The policy of the [Israeli] Supreme Court in the sphere of [legal] standing and justiciability [is] based on giving preference to the rule of law;” i.e., the need to protect and preserve the rule of law itself “as opposed to the institutional interest of the court” to steer clear of political issues that invite retaliation from the political branches of government. “This is because without judicial imposition of the law,” says Bendor, “the law would not be upheld” at all.
Which explains why the Supreme Court being under fire, at present, is pregnant with meaning.