Visions of the ‘Right to Democratic Governance’ under International Law: The Complexities of the Philippines under Duterte

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’ polarization 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.