It is rather common to refer to the Constitution as “the fundamental law”—and it is, when one is stating the relation it has to statutes and to forms of subordinate legislation. Some refer to it as the “fundamental charter of rights and liberties”—although it is of course more than this since it also establishes the framework of government. Some go so far as to identify it with the “social contract” that Hobbes and Rousseau and other contractarian theorists thought lies at the heart of organized society.
H.L. Hart, in advancing his interesting concept of law, posits that the law, rather than being a collection of commands, is actually an interesting network of primary and secondary rules, important among these, what he calls “the rules of recognition”—the fundamental rules by which one recognizes which are rules. It is by the Constitution that we recognize a Republic Act as a statute, and the rules of the Comelec insofar as the conduct of elections goes as binding rules. But then follows the interesting, vexing but perfectly legitimate question: By what rule does one recognize the Constitution as fundamentally binding?
This, for Hart, amply illustrates the complexity of the phenomenon of law and that one would be toeing a simplistic line by seeing it nothing more than a series of commands. When one asks about the recognition of the Constitution, one raises a question that calls for advertence to an interesting complex of social behavior, disposition, individual and collective decision and decision-making processes. The rule of recognition then by which the Constitution is recognized is not ONE RULE, much less is it written. It is a complex of avowals, behavior and decision-making. For brevity, we can call this “the commitment to abide by a Constitution.”
This then is the “social contract,” the ground norm, the founding social compact. It is this social compact that allows for the Rule of Law. And so it disturbs me very profoundly when citizens speak and act as if the Constitution were some impertinent nuisance that can be swept aside when it stands in the way of whim, personal allegiance or arrant adventurism. Recently, the Solicitor General was reported to have asserted that the President could declare martial law when he thought it necessary, and that he did not have to be confined to situations of invasion and rebellion—which are actually the conditions contemplated by the Constitution. When I remarked on Facebook that the Solicitor General, if indeed he made those remarks, could be disciplined by the Supreme Court if not disbarred, someone shot back: “Palagi na lang unconstitutional. Think out of the box.” And I retorted: “The box is called the Constitution.” The riposte I got was chilling in its remorselessness—and clear thoughtlessness: “Eh di echa puwera ang Constitution na yan.” Now, if as I have argued, underlying the Constitution and the rule of law as the most elementary rule of recognition is the social compact to live and organize social life by the Constitution, clearly the rule of law and the viability of the Constitution are on a perilous edge when you have this brand of a personality cult or populism that makes of the Constitution a dispensable inconvenience.