We have a fundamental belief in the virtues of democracy—and nowhere has this belief found expression in varied but unmistakable ways than in the deliberations of the Consultative Committee tasked by the President to prepare a draft of a constitution for a federal republic.
One of the first provisions that triggered the entire polemic on democracy and everything undemocratic was the discussion on the flawed and mangled party-list system introduced by the 1987 Constitution. I did not want to see any more of a system that had been hijacked by individuals who desperately wanted seats in Congress without the endorsement of a constituency, the wherewithal for a national campaign or the charisma to lead a party. Some of the committee members were convinced that some seats had to be “reserved” for underprivileged, underrepresented sectors: fisherfolk, peasants, urban poor among them. But that of course begged the question whether it was requirement of a democracy that members of the sector themselves sat in the Legislature and took part in its deliberations?
Of course, a lot of that turns on the concept of “representation.” Can one who is not a peasant represent peasants? Can a lawyer fairly represent fisherfolk? The prevailing contemporary myth is that both questions must receive firm, negative answers. Only a peasant can represent peasants. Only a laborer can represent laborers. I am convinced that the fundamental question, insofar as the praxis of democracy is concerned, is whether or not peasants, OFWs, the urban poor, fisherfolk and other supposedly really want to take part directly in the legislative process. That they should be allowed if they want to is not the issue here, because they should. But do they want to? The pragmatist legal philosopher and appellate judge Richard Posner does not think so. The belief, he thinks, is fundamental to a discursive theory of democracy that he is not too keen on. He is convinced that most of the people are wiling to entrust fairly elected representatives to do the drafting, debating and compromising for them.
I am persuaded by the discourse theory of democracy that identifies legitimation with a discursive process that is inclusive, one in which the fundamental human right is the right to participate in law-generating discourse. With the discourse theory of democracy, I am convinced that ultimately the test of legitimacy is whether or not the norm is able to confront objections raised against it, and that a rational defense can be convincingly put up for it. But while inclusiveness requires the theoretical openness of the parliamentary floor to all who wish to propose, to oppose, and to question, and the concept of human rights rejects the a priori exclusion of any person from the exchange, the question is not yet answered whether democracy is compromised when those for whom the law is enacted must participate in the discourse.
My take on this issue is that as long as the members of a community are free to choose their representatives (under “ideal” circumstances that leave the voter free of any influence other than rational conviction), there is no requirement of direct participation. That, I think, is what triggered the evolution of the entire republican concept and the gradual obsolescence of direct democracies. Of course, one has to be careful lest the “ideal circumstances” become an unattainable counter-factual. There will be several influences: the personal charisma of the candidate, his or her perceived competence or, by contrast, ineptitude, the candidate’s sincerity— which, in itself is one of the “implied claims” of any speech act, according to Habermas. None of these is inimical to free choice. It becomes quite a different thing when interrogation is stifled and when the attraction of the visceral overcomes the persuasive force of the rational.
I write therefore in support of the proposition that for the marginalized and underrepresented to be effectively represented, it is not required that a peasant, or a fisherman or an OFW take a seat in Congress—although there should be nothing to prevent that possibility. And if we thus think of representation less romantically and more akin to what Posner calls the “Schumpeterian model,” then it will do to elect thoughtful, fair and just representatives, rather than singling out representatives for particular sectors or, worse, reserving seats for them!