By Pesi Fonua

The establishment of Mafia Republics in the Asia Pacific region is a possibility, warned Dean Raul C. Pangalangan, the Professor of Law, University of the Philippines, in a key note speech to open the Transparency International Regional meeting in Manila, Philippines, on May 21.

"The real danger with popular democracy, with plebiscitarian democracy, is that it has produced not rule of the genuine majority but the rule of the best organized minority, or as I prefer to call it, to a Mafia Republic."

Prof. Pangalangan said that with the Philippines, the public had been fixated for too long with perfecting the structures and the mechanisms of public institutes and agencies and avoided ideological debate. "We then end up empowering the best organized and most loyal syndicates - a Mafia Republic."

He gave an example of a recent Supreme Court decision on advertising of milk formula and breastmilk substitutes. "The debate ended up as one about whether the Department of Health went beyond the scope of legislative warnings about milk formula, rather than the actual merits and demerits of expensive formula versus cheap and healthy mother's milk!...”"

Tonga

The Transparency International Asia-Pacific Regional Programme meeting is an annual gathering of representatives of the 26 national Chapters in the Asia Pacific region.

Tonga, though not yet a Chapter, had a representative at the meeting for the first time.

The meeting from May 20-24 has a theme of "Building Citizen Competencies Against Political Corruption".

Philippines

Prof. Pangalangan said that the Philippine's constitution of 1987 was a fresh start following the Marcos years, and several layers of institutional safeguards against the misuse of state power for personal aggrandizement were created.

"We used to adhere to the old theory in American constitutional law which spoke of a 'Machine That Would Go of Itself...’', wherein institutions kept one another in check, without having to marshal routinely the raw power of the people, and words from the Federalist paper that it 'Would enable government to control the governed, and in the next place oblige it to control itself.' In a way, this was a system that was wary of the raw power of the people, and wished to channel that power through institutions.

"The 1987 Constitution deviated from that model, built on the realization that the built-in checks and balances have historically failed in the Philippines, and that we needed to augment the institutional checks with outside fail-safe mechanisms, namely, to turn once again to the power of the people."

Professor Pangalangan said that under the 1987 Constitution laws were implemented either to strengthen or create the independent watchdog agencies: the Commission on Audit, and the Ombudsman.

"Next, the Constitution shifted power to citizens to make those institutions work. It declared 'a policy of full public disclosure of all its transactions involving public interest' and recognized the 'right of the people to information on matters of public concern.' It ensured every citizen 'access to official records, and to documents and papers pertaining to official acts, transactions, or decisions'."

Transparency

Prof. Pangalangan pointed to an unique dynamic between institutions and civil society, "precisely the kind of dynamic in which transparency is the key instrument. In other words, transparency doesn't mean the abandonment of institutions and the total shift to civil society or People Power. Rather, it means the recognition that institutions do not work in a vacuum, that they exist to serve a community, and that community must will itself to make its institutions work.

"This lies at the heart of 'transparency', that citizens do not give up on their institutions and, instead of discarding them and seizing the public power into their own hands, merely strive to force them to function.

"The campaign for transparency can put to good use these three developments. The watchdog agencies provide the institutional pressure points. The procedural regime secures the material, the information, to fuel the inquiries. And the normative elaboration provides the moral standards by which we pass judgment.

"Therein lies the problem, not just with the Philippines, but with the very concept of 'transparency.'

Search for the truth

"For the past four months, we have witnessed startling revelations about scandalous frauds on the public treasury, of grossly overpriced government projects, in excess of even NEDA projections and authorizations, with first-hand reports of money changing hands, attested to by cabinet and sub-cabinet officials.

"The search for the truth has been impeded by, strangely enough, the Supreme Court, invoking larger principles about executive privilege. The complaints before the Ombudsman have not prospered. In other words, every institution for public accountability has failed.

"Normally such outrages would have provoked a groundswell of indignation - as it did toward the later part of March this year. But even that fizzled out, because of a widespread insistence for - again - The Rule of Law.

"At this stage, the authors of the Federalist Papers can very well say: We told you so. That was why they reserved power to the traditional checks and balances, and deferred the popular power only to periodic elections every three (or four, in their case) years. That was why they preferred that the popular power be expressed through the ballot during elections, not by shouting slogans and marching in the streets."

Prof. Pangalangan concluded his speech by saying that "Indeed, they can add. The real danger with popular democracy, with plebiscitarian democracy, is that it has produced not rule of the genuine majority but the rule of the best organized minority, or as I prefer to call it, to a Mafia republic."