A GOVERNMENT OF MEN

By Jorge D. Lomboy
January 2, 2016



Under a government of laws, ordinances, laws and constitution are held as statutory authorities.  In case of conflict between ordinance and law, the law prevails.  And in case of conflict between law and constitution, the constitution prevails as it is the fundamental law of the land.

Above and beyond statutory authorities, there is a body of men vested with the authority to interpret, reinterpret, write and rewrite the statutory authorities in any manner they please by the supreme dictum of interpretation.  This body of men are the decision makers, judges and justices which are the persons in authority. For quite some time the tug of war between statutory authorities and persons in authority is a point that has passed so easily, so I propose to belabor it.

Since persons in authority and statutory authorities are not one and the same, the question that comes to mind is whether ours is a government of laws or a government of men.  I hold the view that a government of laws is a legal fiction, a contemplative doctrine enunciated by indoctrinated members of the legal community.  To bolster my view, we need to distinguish between government and law.  Government is an organization through which a body of people exercises political authority among persons in authority.  As an organization, it cannot function without a body of people.  It is the body of people that moves the machinery of government services.  Law is the aggregate of legislation, judicial precedents and accepted legal principles.  Again, the question that comes to mind is whether law is above a body of men exercising the sovereign powers of government.

The supremacy of the constitution is another highfalutin fallacy prompting me to play the role of devil’s advocate. A constitution is a body of written words whose meanings are conveniently constricted or stretched like a rubber band by the fallible men in the bench where the supremacy of the constitution is subordinated to the superiority of interpretation. Justices are people who have biases and prejudices, people who have loyalties and values, people who can be harsh or kind, or people who have goals and ideologies.  The constitution has none of the above.  Justices can twist the constitution like a steering wheel to suit their preferences.  The driver is in control of the vehicle, the jockey is in control of the horse.  The constitution is the vehicle and the horse while the justices are the drivers and the jockeys.  On this basis, supremacy of the constitution is a fallacy where justices are in control of a government of men.

Any act contrary to law is illegal and any act contrary to the penal code is a crime.  Examples of crime are cheating, extortion, fraud, kickbacks, robbery, swindling and theft.  Many persons in authority compete to achieve the highest levels of financial success through these various crimes and yet most of them are in power and in control of government.  This fact of life suggests a government of men made a hostage of a government of laws.  Or better still, a merger between government and persons in authority.  A government of laws is not a respecter of persons.  A government of men is a respecter of persons.  That is why freeing the guilty is punishing the innocent.  A government of laws applies to persons in authority but a government of men overrides a government of laws by the sheer power of interpretation.  It is the language of justices and not the language of the law that turns a government of laws into a government of men.

It doesn’t matter what the constitution says.  What matters is the interpretation given.  The words in our constitution remain the same.  They don’t change.  But the interpretation varies from time to time.  It could not be said that a government of laws is in place when the same constitution is being translated differently by various judges and justices who come and go.  It could not be said that a government of laws is in place where the meanings given suit the desired opinions. And it could not be said that the constitution is supreme when the opinions of the justices rightly or wrongly set the precedents for similar cases.  The primacy of precedents over the constitution strongly supports the claim that rule of men overturned rule of law.  Case laws, opinions and precedents preempt the constitution.

The power of interpretation is a very dangerous power for it can modify the language of any law.  Interpretation is a faculty of the mind that has become anybody’s game.  It is a playground for selective justice, and through interpretation the guilty are absolved and the innocent are convicted.  Through interpretation, our rights under the law could be won or lost. Through interpretation, what was illegal becomes legal and vice-versa.  Justice is blind, law is blind, but men are not blind. Men are biased, they are prejudiced, and they are predisposed to uphold their own values.  At best, the constitution is a guideline, a subservient tool of interpretation and plastic clay to be twisted, molded and tailored by the power of interpretation.  It is for this reason that the power of interpretation is very dangerous for it negates the supremacy of the constitution.

Time and time again, we have been told that no one is above the law.  People keep saying the same thing over and over again like a broken record.  I do not agree.  Broadly, law is just a rule and nothing more but a rule.  It doesn’t have the force of a judgment which holds the last word.  It is the judgment of a court, the verdict of men and not the rule of law that finally determines who wins and who loses.  A judgment may not uphold the law or may even deviate from the law.  But because it has the last word, the saying that no one is above the law is at best a prima facie presumption and not an absolute presumption.  The authority to make a decision and the power to render judgment are what turns a government of laws into a government of men and a rule of law into a rule of men for no judge can be imprisoned for making a wrong judgment.

Time and time again, we have been told that the constitution is the supreme law of the land.  People keep saying the same thing over and over again like a broken record.  I do not agree.  The constitution does not have the force and effect of the opinions of justices who have the last word.  It is the majority opinion and not the constitution that finally determines who wins and who loses.  An opinion may not uphold the constitution or may even redefine the constitution.  But because the opinion is the last word, supremacy of the constitution is a prima facie presumption and not a conclusive presumption. The authority to interpret the constitution and the power to render an opinion anchored on interpretation is what transforms a government of laws into a government of men and a rule of law into a rule of men.

A government of men is a fact.  It is real, it is the truth, and it is not a misnomer.  Imagine for a moment a mental picture of a potter and clay.  In our legal system, the clay are the statutory authorities consisting of ordinances, laws and the constitution.  The potters are the persons in authority consisting of decision makers, judges and justices.  The clay is woven into the judgments, rulings and opinions of the potters.  It is their judgment and not the law, it is their opinion and not the constitution that defines our rights and obligations.  It is the judgment and opinion of the potters that have the force and effect of law.  It is the judgment and opinion of the potters that determines guilt or innocence.  It is the judgment and opinion of the potters that determines what is legal and what is illegal.  The potters have the last word.  And on this premise, we have a government of men.