August 25, 2018 (10:58 AM)

10 min read


DIALOGUE. Students, faculty, and staff of AdDU gathered in a round-table discussion on the Bill of Rights and Non-State Actors in the Proposed Federalist Constitution with Fr. Patrick Riordan, S.J. as the panel’s main discussant. Photo by Jacymae Kaira Go

“The purity of the agreement between state power and the citizen is muddied by the introduction of third parties.”

Opposing the involvement of non-state actors (NSA) in the bill of rights of the proposed federalist constitution, Fr. Patrick Riordan, a scholar on political philosophy and an educator at Heathrow College, London, stressed that “the references to non-state actors suggest that the state is backing away from its obligation to protect the rights and security of its citizens against the threats posed by non-state actors.”

“It (the state) renounces its obligations, and it leaves to the citizens, themselves, to seek redress against those agencies which have deprived them of their rights,” he said, during the Inaugural Pakighinabi of the Calungsod-San Vitores Jesuit-Lay Collaboration Center last August 23.

He emphasized that the mentions of NSAs only place those non-state actors “in a comparable position to that of a state.”


Proposed constitution innovation

“The constitution of a state is actually a force field of different tensions. All the more so a draft constitution,” Fr. Riordan said, elaborating on unsolvable “tensions between moral rights and codified rights, political aspirations and legal possibilities, historical achievement and hope for different future, assumed common ground and conflicting interest and legal reality and imagined utopia.”

Explaining the tasks of a constitution as determiners of the location of power, separation of powers and limitations of powers, Fr. Riordan revealed that somehow, the “state creates the constraint that bind it.”
“While states are the principle agent charged by protecting and vindicating rights, they also seem to be the major threat to rights,” he said, emphasizing that although this is the case, the “power of the government is still limited by the rights of people.”

For the said reason, Fr. Riordan believes that “it is preferable that the clarity of the focus on the relationship between the state and the citizens be maintained.”

He emphasized that the two aspects of modern political structure include “success on the performance of the basic function of the state and rule of law and compliance with the highest standards set for a state.”

“A bill of rights for a constitution sets out those standards to in which the state commits itself, not with the non-state actors but the highest standards to which it commits itself,” he said.

“The state’s undertaking on the bill of rights concerns itself as possible violators of rights. Its undertaking concerning third parties as possible violators of rights finds expression in the criminal and civil law so even in vindicating rights by prosecuting violators, the state undertakes to do so according to law ensuring that the rights of the accused and of the convicted are not harmed by its actions,” he added.

The Article 3 Section 1 of the proposed federal constitution includes the statement “the rights under this article are demandable against the state, and non-state actors and their enforcement shall be consistent with international standards.”

“The state may be weakening its obligations to protect the rights of its citizens against threats pulled by non-state actors by listing them in a comparable position to that of a state,” Fr. Riordan emphasized.

 Notes on the issue

Fr. Riordan presented three key takeaways of his discussion on the innovation of the Bill of Rights: the ambiguity of rights language, President Duterte’s rhetoric, and the issue on international relations.

“The ambiguity (of rights language) is reinforced by the difference in context between the strong state and the good state,” Fr. Riordan said. “It risks too much to confuse the strong state obligations and the good state obligations of governmental authority.”

On the other hand, he also mentioned how President Rodrigo Duterte’s rhetoric ‘your concern is human rights, mine is human lives’ caused an uproar from different people.

“His remark is understandable if we consider this to other expressions and concerns of his,” he added, elaborating the president’s concerns like the Philippines being a narco-state and the rampant corruption in government agencies.

He also interpreted that the president’s action focuses on being a strong state “with the competencies of law and order in the face of non-state actors whether big business interests with an endless supply of corrupting money or drug cartels or crime syndicates.”

Lastly, Fr. Riordan stressed the relevance of the issue on international pointing out the inevitable tendency to “take the existence of the state for granted.”

“Russia and China have seen the distractions of existing states in the name of high standards of human rights leading to impossible situations we now have in which no survivable state exists,” he said.

“Yes, be a good state; but first, be a state,” he said.

“Failed” state

“When we speak today of a failed state, what do we mean?”

Fr. Riordan responded that a “failed state” may mean a “state that fails to live up its own high ideal standards” or a “state in name” alone.

However, this concept of a failed state may also mean the failure of becoming a state, itself, or failing to be a good state.

“A failed state is a state that is incapable of fulfilling the basic condition max weber formulated that it can successfully claim to hold the monopoly in the legitimate use of physical force within a territory,” Riordan said.

Hence, Fr. Riordan introduced the features of modern statehood – becoming a state and being a good state.

Strong state vs. good state

Fr. Riordan presented three features in which a strong and modern state thrives on sovereignty issue, rule of law and accountability.

“Sovereignty issue corresponds with the condition of existence, and that’s definitely a necessary condition for a state to be strong enough to exist,” he said.

On the other hand, a good state only focuses on two conditions – the rule of law and accountability.

“Rule of law is expressed in the constitutional commitments to defend and not to violate fundamental rights, and this belongs to the conditions of being a good state. This ensures a democratic system which allows for the possibility of replacing government and officials who fail with the support in the elections,” he explained.
Government accountability, on the other hand, is ensured not only on regular elections but also in “forms of budgeting, reporting, and parliamentary overview.”

Referencing philosopher John Locke, however, Fr. Riordan stressed that “society could not emerge in peaceful harmony by reliance on those peaceful directives alone.”

“He (John Locke) gets three reasons why people would want to move out of the state of nature, perfect freedom and equality to enter under government and law: lack of settled, known law, lack of impartial adjudicator and lack of executive force strong enough to implement the law and enforce the judgments of arbitrators,” he said.

Riordan added that the specification of one’s liberties in a settled law allows people to know “where they stand.”

Fr. Riordan pointed out that the “distinction between good state and strong state is not a matter of choosing one or the other” but both.

“A strong state that fails to be a good state is doomed, but equally, a good state that fails to be strong is also doomed. The issue of sovereignty remains critical,” he said.


Discussants’ take

“We might be some kind of a failed state or in a limited statehood,” Representative of the Philosophy department Prof. Jose Maria Tomacruz said.

Meanwhile, University Registrar Atty. Edgar Pascua II said that the innovation of the Bill of Rights only puts the Philippines in “the same dog, different collar” scenario.

“We still have the same set of politicians, the same mindset as Filipinos, the same cultural influences,” he said.
On the other hand, Political Science and History Dept. Chair Ramon Beleno III insisted that the “inclusion of non-state actors is problematic.”

“I think the most important thing here is that human rights are respected & protected, whether by or from state or non-state actors,” Dr. Arnella Francis Clamor of the Theology Department emphasized.

As voices of the student body, SAMAHAN Pres. Jerry Huerbana admitted that indeed, “it is a challenge to encourage the youth to participate and discourse in this issue” whereas SAMAHAN Sec.-Gen. Mina Limbaga pointed out that “there are already a lot of human rights violations, what more if non-state actors are added in.”

Both Chairperson of the Governance Department Dr. Eminel Jane M. Alvior, and Director of the Ateneo Resource Center for Local Governance Dr. Lenore A. Loqueloque posed opened for discussion the implications on succeeding laws.”

“The inclusion of non-state actors would create a new level of governance, called the trans-national governance. What would then be the impact of these NSAs (non-state actors) on the governance at the national level?” Dr. Alvior said.

Ateneo Blue Knight Alumni Association President Ms. Ma. Rossana H. Fernandez focused the issue on the lens of a “normal citizen” trying to understand federalism” while Director of the Ateneo Public Interest and Legal Advocacy (APILA) Atty. Arnold Abejaron relayed the importance of a “non-ambiguous definition of non-state actors.”

“The Constitution is a contract between the governor and the governed, and the alone,” he added.

Academic Vice President Dr. Gina L. Montalan posed the following questions: What are these non-state actors? Who are these NSAs? What are the implications of the inclusion of these non-state actors?”
Admittedly, University Community Engagement and Advocacy Council Chairperson Mark Paul Samante recognized that there is a need for the revisiting existing RAs in order to concretely define ‘non-state actors’ and analyze the ‘use of the term illegal’ and, improve domestic relations.


Recommendations and possible solutions

“My objection to combining non-state actors along with the state applies only to the bill of rights. I don’t have any objection to the combination here under the federal commission on human rights,” Fr. Riordan said.

Fr Riordan believes that the “assigned brief for the constitutional commission on human rights seems to me the appropriate place for seeing the relatedness of the state and non-state actors in relation to human rights and not the bill of rights.”

He also suggested that “a more appropriate formulation within the bill of rights would place all the responsibility to the state to ensure the goods in question.”

“The Bill of Rights, I suggest, should assert negative limitation on state power as for instance the insistence that there would be no taking of human rights by the state. This is something that the state can unequivocally deliver,” he stated.

The Inaugural Pakighinabi entitled The Bill of Rights and Non-State Actors in the Proposed Federalist Constitution focused on the proposed innovation in the constitution through the lens of political science.

With the indigenous motif of hall adorned with T’boli and T’nalak accents and Tausug-themed paintings designed by local artists, the Calungsod-San Vitores Jesuit-Lay Collaboration Center opened for more dialogues on multidisciplinary concerns more informally and conversationally.

Its purpose is to create a structure for conversations in a frame of social justice and the common good in pursuit of forming the institution’s sui generis leaders.

End the silence of the gagged!

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