FOUCAULT’S DISCIPLINE AND PUNISH

AS A MODALITY OF TRANSFORMATION

IVY D. PATDU

I. DEPARTURE FROM SOVEREIGN UNDERSTANDINGS AND PRACTICES OF POWER

On 2 March 1757 Damiens the regicide was condemned…he was to be ‘taken andconveyed in a cart, wearing nothing but a shirt, holding a torch of burning waxweighing two pounds…the flesh will be torn from his breasts, arms, thighs andcalves with red-hot pincers…on those places where the flesh will be torn away,poured molten lead, burning oil, burning resin, wax and sulphur meltedtogether…his limbs and body consumed by fire, reduced to ashes and his ashesthrown to the winds’1

It is hard to imagine how eighteenth century torture was

sanctioned, to a certain extent, by public opinion. The human

race, once upon a time, considered suffering as punishment, and

punishment as entertainment. This actually should come as no

surprise because even in contemporary history we have the likes

of Slobodan Milošević accused of crimes against humanity which

includes, among others, the slaughter of Croatian men and women

in Bosnia.2 The punishment of rape or death for being a

different race or religion happened again in 1994 in Rwanda, when

1 MICHEL FOUCAULT, DISCIPLINE AND PUNISH (THE BIRTH OF PRISON) 3 (1979) (translated by AlanSheridan, 1977)[hereinafter DISCIPLINE AND PUNISH] .2 Milosevic Trial Public Archive, available at http://hague.bard.edu/ (last accessed April 11, 2008). See also, BEVERLY ALLEN, RAPE WARFARE: THE HIDDEN GENOCIDE IN BOSNIA-HERZEGOVINA AND CROATIA (1996).

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Tutsis were exterminated by the Hutus.3 Over the course of about

100 days, from April 6 to mid-July, at least 500,000 Tutsis and

thousands of Hutus were killed during the genocide.4 Some

estimates put the death toll around the 800,000 and 1,000,000

marks.5 These only show that man is capable of extreme cruelty.

The difference between these modern genocides and 18th century

torture is that the genocides are considered today as jus cogens

while the latter is inextricably bound with a penality system

that was justified as punishment for the prisoners.

While Foucault describes the gruesome fate of Damien, tortured in

the 18th century, as take-off point of his discourse on how

penality changed in modernity, it must be noted that public

torture and execution was extensively utilized in early history.

Reaching its peak in the 12th century, torture was used in

capital cases as well as against suspected heretics, where from

the mid-14th century to the end of the 18th century, it became a

common and sanctioned part of the legal proceedings of most

European countries approved by the inquisition in cases of

heresy.6 The most common means of torture thus included burning,

3 Rwandan Genocide in WIKIPEDIA, available at http://en.wikipedia.org/wiki/Rwandan_Genocide (last accessed April 11, 2008).4 Id. citing Des Forges, Alison, Leave None to Tell the Story: Genocide in Rwanda. HUMAN RIGHTS WATCH (1999). 5 See, e.g., Rwanda: How the genocide happened, BBC, April 1, 2004, which gives an estimate of 800,000, and OAU sets inquiry into Rwanda genocide, Africa Recovery, Vol. 12 1#1 (August 1998), page 4, which estimates the number at between 500,000 and 1,000,000.6 The Holy Inquisitions, available at http://www.geocities.com/christprise/holy-inquisitions-2.html(last accessed April 11, 2008).

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beating and suffocating. The burning at the stake became a

punishment that drew crowds. Thus,

If the Inquisitor wanted to be sure no relics were left behind by an accused andconvicted heretic, he would select death by burning at the stake as the preferredmethod of execution. With few exceptions, death came from being burned alive.Frequently, burning a victim at the stake was cause for a crowd. Not content tomerely learn about the spectacle after it was over, the masses wanted to beentertained.7

Torture as a means of punishment served to discipline because of

the visual impact of suffering. A person perceiving and capable

of perceiving rejects criminality because of the intensity of

punishment. The new age for penal justice moved away from these

archaic notions. In the span of only a few decades between the

eighteenth and nineteenth centuries, torture as public spectacle

disappeared as did the body as the major target of penal

repression.

Focault discusses how numerous projects for reform, new theories

of law and crime and new moral and political justifications of

the right to punish became the beginning of the transformation of

the penal system. Interestingly, punishment becomes a hidden

part of the penal process relying on the concept that it is

inevitable and certain more than its visible intensity. Even if

there is no horrifying spectacle of public punishment, the

abstract consciousness of the mechanics of punishment discourages

crime.

7 Id. Reflecting on those facts, and understanding such events occurred "under the law,"one can clearly understand how Thomas Hobbes came to the conclusions he did about man in a state of nature. If man is capable of such violence and inhumanity in a state of civilization, of what is he capable when there are no laws and there is no society?

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The trend was also to move away from corporal punishment.

Focault says that there is a “slackening of the hold on the body”8 At the beginning of the 19th century, the tortured body was

avoided. One no longer touched the body, or at least as little

as possible, and then only to reach something other than the body

itself. 9 The body now serves as an instrument or intermediary:

if one intervenes upon it to imprison it, or to make it work, it

is in order to deprive the individual of a liberty that is

regarded both as a right and as property. 10 In effect, the mode

of punishment was no longer hinged on pain. If the penality in

its most severe forms no longer addresses itself to the body, on

what does it lay hold? 11 A whole set of assessing, diagnostic,

prognostic, normative judgments concerning the criminal have

become lodged in the framework of penal judgment. 12

The idea of reforming the criminal pervaded new theories. What

is being punished is the crime more than the criminal. Foucault

discusses the beginning of modern disciplinarity in this guise:

To sum up, ever since the new penal system – that defined by the great codes ofthe eighteenth and nineteenth centuries – has been in operation, a generalprocess has led judges to judge something other than crimes; they have been ledin their sentences to do something other than judge; and the power of judginghas been transferred in part, to other authorities than the judges of the offence.  The whole penal operation has taken on extra-juridical elements andpersonnel….Today, criminal justice functions and justifies itself only by this

8 DISCIPLINE AND PUNISH, supra note 1 at 10.9 DISCIPLINE AND PUNISH, supra note 1 at 11.10 DISCIPLINE AND PUNISH, supra note 1 at 11.11 DISCIPLINE AND PUNISH, supra note 1 at 16.12 DISCIPLINE AND PUNISH, supra note 1 at 19.

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perpetual reference to something other than itself, by this unceasingreinscription in non-juridical systems.  Its fate is to be redefined by knowledge.13

A corpus of knowledge, techniques, ‘scientific’ discourses is

formed and becomes entangled with the practice of the power to

punish.14 The Penal system in the Philippines reflects the ideas

set forth by Foucault. A penalty remains to be the suffering

inflicted by the State for the transgression of a law. Over the

last 200 years, what may be considered crimes have changed. By

way of example, Foucault cites “blasphemy” which has lost its

status as a crime today.

Luis Reyes, one of Filipino jurists, maintains that the juridical

conditions of a penalty, based on Classical school, is that

penalty must be productive of suffering.15 Foucault, on the

other hand, says that there remains a “trace of torture in the

modern mechanisms of criminal justice.”16 Penalties of modern

times have become less cruel and less painful and have become

more humane. Under Philippine criminal system a penalty has to

be commensurate, legal, certain and correctional. 17

Most modern Penal Code supports Foucault’s notion that a crime is

to be understood based in attenuating circumstances. The

Revised Penal Code of the Philippines, promulgated into law in

1932, and based primarily on the Spanish Penal Code, provides in

13 DISCIPLINE AND PUNISH, supra note 1 at 22.14 DISCIPLINE AND PUNISH, supra note 1 at 23.15 I LUIS B. REYES, THE REVISED PENAL CODE (15th ed. 2001).16 DISCIPLINE AND PUNISH, supra note 1 at 16.17 I LUIS B. REYES, THE REVISED PENAL CODE (15th ed. 2001).

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articles 11 to 15 the various circumstances which may justify,

exempt, aggravate, or mitigate the commission of a felony.18

More than punishment, the idea that a criminal is to be reformed

and corrected pervaded the theories of modern criminal justice

systems. A penalty is imposed for purposes of prevention of the

commission of another crime, a means of self-defense of the state

against individuals who harm it, for justice and for reformation.

Foucault said that punishment took on a social contract model

where violations of the law violated the contract of the society.19  “The right to punish has been shifted from the vengeance of

the sovereign to the defence of society.” 20 The major function

of punishment is to prevent future crime.  “One must punish

exactly enough to prevent repetition”21

Under the Revised Penal Code, the purpose of imposing penalty is

three-fold: Retribution, Reformation and as a social defense

against habitual delinquents.22

As a correlative history of the modern soul and of a new power to

judge, four guidelines were raised by Foucault:

(1) Do not concentrate the study of the punitive mechanisms on their ‘repressive’effect alone, on their ‘punishment’ aspects alone, but situate them in a wholeseries of their possible positive effects, even if these seem marginal at first sight.  As a consequence, regard punishment as a complex social function.

18 REVISED PENAL CODE, arts. 11,12,13,14 and 15 (1932).19 DISCIPLINE AND PUNISH, supra note 1 at 90.20 DISCIPLINE AND PUNISH, supra note 1 at 90.21 DISCIPLINE AND PUNISH, supra note 1 at 93.22 I LUIS B. REYES, THE REVISED PENAL CODE (15th ed. 2001).

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(2) Analyse punitive methods not simply as consequences of legislation or asindicators of social structures, but as techniques possessing their own specificityin the more general field of other ways of exercising power.  Regard punishmentas a political tactic.(3) Instead of treating the history of penal law and the history of the humansciences as two separate series whose overlapping appears to have had on oneor the other, or perhaps on both, a disturbing or useful effect, according to one’spoint of view, see whether there is not some common matrix or whether they donot both derive from a single process of ‘epistemologico-juridical’ formation’ inshort, make the technology of power the very principle both of the humanizationof the penal system and of the knowledge of man.(4) Try to discover whether this entry of the soul onto the scene of penal justice,and with it the insertion in legal practice of a whole corpus of ‘scientific’knowledge, is not the effect of a transformation of the way in which the bodyitself is invested by power relations.23

Punishment is a complex social function concerning man as subject

of power and object that made possible the humanization of the

penal system. Man became the object of discourse and penal

lenience became a technique of power. It has been a recurrent

theme of Foucault that knowledge is a means by which change

occurs and the self is improved. In relation to the birth of the

prison, the conception that penality should be exercised away

from the prying eyes of the public came with the eruption of

knowledge, the concept of punishment nor merely as tool of

repression, the focus on the crime rather than on the criminal.

Foucault suggests that the history of the penal system should be

understood in the context of the history of human sciences.

Developments in economics, psychiatry, sociology and statistics

23 DISCIPLINE AND PUNISH, supra note 1 at 23-24.

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as well as the biological and physical sciences contributed to

the shifting views in penality.

Condorcet's interpretations of the various "stages of humanity"

or Auguste Comte's positivism were one of the most important

formulations trusting social progress and as in Jean-Jacques

Rousseau's Emile (1762) treatise on education (or the "art of

training men"), the Aufklärung conceived the human species as

perfectible: human nature could be infinitely developed through a

well-thought pedagogy.24

In effect, the view of crime evolved. While the ideas of the

ideas of the utopian and social contact writers were well known

and widely accepted by the intellectuals of the day in the middle

of the 1700s, they did not represent the thinking of politically

powerful groups.25 Crime was seen as a fall from an original

state of grace and the perpetuators were subjected to extreme and

horrific punishments.

In theology, there is a shift in the understanding of sin.26 The

traditional view of sin centered on sin as an act or something that

people do. The traditional view affirmed the existence of

24 Philosophy of History in Wikipedia, available at http://en.wikipedia.org/wiki/Philosophy_of_history (last accessed April 11, 2008).25 Criminology: Intellectual History - Classical Criminology, available athttp://law.jrank.org/pages/908/Criminology-Intellectual-History-Classical-criminology.html (last accessed April 11, 2008).26 See generally, PAULINUS IKECHUKWU ODOZOR, RICHARD A. MCCORMICK AND THE RENEWAL OF MORAL THEOLOGY(1995).

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original sin and the state of mortal sin. It was not until the

19th century when recognition of understanding sin as a state or

sin as a direction began. This state of personal sinfulness is

sin in its ultimate most profound human form and is considered to

be what life is all about: the question of living in sin or

pointing our lives in a direction toward God. Theologians

advocated that the understanding of sin should revolve around the

understanding of the human person and the various dimensions

of the human act. In the terminology of classical realistic

philosophy, a human act is actus humanus; an act of a person is

actus hominis.27 It is actus humanus which is considered a moral act,

an activity of human person with freedom and intention. Sin

therefore does not consist only in discrete and isolated actions

and decisions. Evaluation of moral acts in the tradition of

Roman Catholic moral theology always has turned to a

consideration of the so-called fonts moralitatis or sources of

morality.

In direct confrontation with these religious and spiritual views

stood the utopian and social contract writers, who advocated

rationalism and criticized the prevailing social conditions. 28

The social contract writers were critical of abuses and perceived

injustice in the way that criminals were punished and they were

outraged by the corruption and abuse of the system. One of the27 Philosophy resource Center, available at http://www.radicalacademy.com/prcminicourseethics1.htm (last accessed April 11, 2008).28 Criminology: Intellectual History - Classical Criminology, available athttp://law.jrank.org/pages/908/Criminology-Intellectual-History-Classical-criminology.html (last accessed April 11, 2008).

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prominent advocate of the classical school of criminology is

Cesare Beccaria. While Beccaria focused on promoting a fair

criminal system involving a gradation of crimes from the least

serious to the most serious and the corresponding penalties

therefor, he focused solely on the criminal act and not on the

intent of the offender or the circumstances of the crime. 29 It

would appear that the traditional and classical approach to crime

and criminals was not an effective exercise of power. The

modern idea considered that there broader social causes to crime:

The first annual national crime statistics were published in

France in 1827, about sixty years after Beccaria wrote his book.

It soon became clear that the rates of crime in general and of

particular crimes such as murder and rape remained relatively

constant from year to year. In addition, some places in the

nation had higher crime rates while others had lower, and these

differences remained relatively constant from year to year. All

of this suggested that there might be some broader social causes

to crime, instead of it being merely a matter of individual free

will. 30

29 Criminology: Intellectual History - Classical Criminology, available athttp://law.jrank.org/pages/908/Criminology-Intellectual-History-Classical-criminology.html (last accessed April 11, 2008).30 Criminology: Intellectual History - Positivist Criminology, available at http://law.jrank.org/pages/909/Criminology-Intellectual-History-Positivist-criminology.html (last accessed April 11, 2008).

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One of the first people to analyze these statistics was Adolphe

Quetelet (1796–1874) who found that some people were more likely

to commit crime than others. 31 He concluded that:

the propensity to engage in crime was actually a reflection of moral character.Relying on Aristotle's views, he identified virtue with moderation: "rational andtemperate habits, more regulated passions . . . [and] foresight, as manifested byinvestment in savings banks, assurance societies, and the different institutionswhich encourage foresight." Young males often did not have these virtues, andso they committed high levels of crime. Similarly, these virtues tended to breakdown among poor and unemployed people who were surrounded by wealth.Thus, his main policy recommendations were to enhance "moral" education andto ameliorate social conditions to improve people's lives. 32

The positivist thinkers, in effect, postulated that man is

capable of being disciplined. Criminal activity is an effect of

the interaction of various factors. While theories on criminal

system considered all extraneous factors to encapsulate the

factors that affect criminal behaviour, the same focus on the

individual was a concern of Foucault. Foucault also discussed

the transformation of the notions of what was to be considered a

crime and who were to be considered criminals. He noted that

crimes became less violent and punishments became less intense

during the latter part of the 18th century. The sovereign power

appeared to be no longer interested in punishment as a means of

extracting revenge. The sovereign could no longer concern itself

31 Criminology: Intellectual History - Positivist Criminology, available at http://law.jrank.org/pages/909/Criminology-Intellectual-History-Positivist-criminology.html (last accessed April 11, 2008).

32 Criminology: Intellectual History - Positivist Criminology, available at http://law.jrank.org/pages/909/Criminology-Intellectual-History-Positivist-criminology.html (last accessed April 11, 2008).

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with vengeance because the modern age kept it preoccupied with

economic concerns, booms in profit and greater value on property

rights.

Positivism centered on the idea of the criminal as being capable

of reform and the abuses of the system as causes of injustice.

Foucault postulates however, that the change was not equivalent

to a new respect for the humanity of the condemned but instead a

tendency a tendency towards a more finely tuned justice. The

price of this transformation and the changing approach of the

sovereign was greater intervention. Foucault says that the

reformers were attacking the excessive nature of punishments, but

“an excess that was bound up with an irregularity even more than

with an abuse of the power to punish.” 33 Foucault considers this

as a “bad economy of power.” 34

The individual and the methods of discipline, and the subsequent

development of prisons was for Foucault an exercise of power.

In a way, the human body was a commodity that could be an

important resource. More than property, the power exercised

over the body was strategy. Foucault discusses the body as being

involved in a political field, and subject of power relations.

He elaborates, thus:

The body is directly involved in a political field; power

relations have an immediate hold upon it; they invest it, mark

33 DISCIPLINE AND PUNISH, supra note 1 at 78.34 DISCIPLINE AND PUNISH, supra note 1 at 79.

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it, train it, torture it, force it to carry out tasks, to perform

ceremonies, to emit signs.  This political investment of the body

is bound up . . .with its economic use; it is largely as a force

of production that the body is invested with relations of power

and domination; but, on the other hand, its constitution as

labour power is possible only if it is caught up in a system of

subjection in which need is also a political instrument

meticulously prepared, calculated and used; the body becomes a

useful force only if it is both a productive body and a subjected

body…There may be a ‘knowledge’ of the body that is not exactly

the science of its functioning, and a mastery of its forces that

is more than the ability to conquer them: this knowledge and this

mastery constitute what might be called the political technology

of the body.  This technology is diffuse, rarely formulated in

continuous, systematic discourse, made up of bits and pieces,

implements a disparate set of tools or methods, cannot be

localized in a particular type of institution or state apparatus.35

In most of his works, Foucault’s sentiments are clear that he

views Language and knowledge as being closely linked to power.

Speech and writing are not simply the communication of facts that

occurs in a vacuum. As important as what is said is who decides

what is said. Foucault develops a complex body of thought out of

the old saying that "knowledge is power." Whoever determines what

can be talked about also determines what can be known. Whoever

35 DISCIPLINE AND PUNISH, supra note 1 at 25-26.

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determines what can be known effectively determines how we think

and who we are. According to Foucault, then, language and

knowledge always have a political edge. He says that Power

produces knowledge and that one is a necessary consequence of the

other such that no power relation can exist without a

corresponding field of knowledge.

The perception in classical criminology that the criminal system

was abused may have resulted from the 18th century judicial

practices. Foucault relates that “[t]he secret and written form

of the procedure reflects the principle that in criminal matters

the establishment of truth was the absolute right and the

exclusive power of the sovereign and his judges.”36 It was not

inconceivable then, that people did not always agree with the

convictions, and the horror of punishment as a public spectacle

became more vivid and unacceptable. In public executions,

Foucault says that the people played roles of audience, witness,

participant, and possibly an indirect victim.  If people

disagreed with a conviction, riots were an increasing

possibility. Thus, Foucault says that toward the end of this

practice, “the great spectacle of punishment ran the risk of

being rejected by the very people to whom it was addressed.” 37

The judicial processes received greater scrutiny. Penal and

police repression, exercised without moderation or restraint,

36 DISCIPLINE AND PUNISH, supra note 1 at 35.37 DISCIPLINE AND PUNISH, supra note 1 at 63.

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became unacceptable. At the same time, Foucault points out that

more literary pieces painted sympathetic criminals.38

In fine, the departure from Sovereign Understandings and

practices of power became a movement towards greater efficiency

and effectiveness in dealing with criminals and prisoners. The

reform was a strategy that did not abolish punishment but merely

strengthened the power to punish, utilizing means and modalities

that allowed greater effects while diminishing economic and

political costs. The end objective of reform was to normalize

punishment and repression as an accepted reality in society.

That is, to “make of the punishment and repression of

illegalities a regular function, coextensive with society; not to

punish less, but to punish better, to punish with an attenuated

severity perhaps, but in order to punish with more universality

and necessity’ to insert the power to punish more deeply into the

social body.” 39

II. THE COERCIVE POWER OF LAW

The Industrial Revolution, both in the United States and the

United Kingdom affected human social history and profoundly

shifted the focus to efficiency and effectivity. Transportation

expanded and industrial processes sought means to improve

38 DISCIPLINE AND PUNISH, supra note 1 at 67.39 DISCIPLINE AND PUNISH, supra note 1 at 82.

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production.40 Technological and economic progress gained

momentum with the development of steam-powered ships, railways,

and later in the nineteenth century with the internal combustion

engine and electrical power generation. The changing attitude

was reflected in modern disciplinarity. An essential concern of

the shift in criminology and system of punishment is to establish

control because the methodology of public spectacle and torture

in light of the changing attitudes of society relentlessly poses

a threat to the ordered ideals of society, and the Industrial

Age’s preoccupation with economy and discipline.

Foucault discusses how the new political anatomy emerging in the

eighteenth century has two intersecting lines of objectification:

that which rejects the criminal from the side of a nature against

nature; and that which seeks to control delinquency by a

calculated economy of punishments that results in the

supersession of the punitive semio-technique by a new political

of the body.41

Foucault rejected the idea that the main driving force of reforms

in punishment is humanitarian concerns for the prisoners but

persuades that the art of punishing is made to rest on a whole

technology of representation. Punishment must proceed from the

crime, be justifiable and must appear to be the necessity of

things. The exercise of power should not overwhelm but must be40 Industrial Revolution, available at http://americanhistory.about.com/od/industrialrev/a/indrevoverview_2.htm (last accessed April 11, 2008).41 DISCIPLINE AND PUNISH, supra note 1 at 103.

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natural in the sense that it reduces the attractiveness of crime

and increases instead fear of penalty. Punishment must be

economical and acceptable to the people whom it seeks to address

and protect.

In this sense, imposition of punishment must be in accordance

with that which makes people subject themselves to the coercive

power of law. While, there is perhaps no exact definition of

Law, Justice Holmes used imagery to define Law as being like a

magic mirror where “we see reflected, not only our own lives, but

the lives of all men that have been.”42 If law is indeed a

reflection of the lives of men, history, or the changing social

realities, then the concept of law would be constantly evolving

and its definition would be relative to a particular class of

people, place or time. Thus, in the context of evolving

penality and the birth of prisons, the change in the legal system

should be understood in the context of the Industrial Revolution,

the development of human sciences and struggles of the sovereign

for more effective control.

Roscoe Pound pointed out two ideas running through definitions of

law: an imperative idea or law as a rule created by the

legislative through the power vested in it by the people in their

sovereign capacity; and a rational or ethical idea wherein law

assumes the character of natural law.43 Law is recognized as the

42 The Law (Address delivered to Suffolk Bar Association Dinner February 5 1885) Speeches by Oliver W Holmes, Boston, Little Brown and Co., 1913, p. 1743 Roscoe Pound, “More About the Nature of Law” Legal Essays in Tribute to Orrin Kip McMurray 513, 515 (1935); Black’s Law Dictionary, ed. Bryan A. Garner, 7th ed. (US:

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rules and regulations that people have to follow in their

everyday lives. Law is a social art and “what the law is, or is

likely to become, are inextricably bound up with questions of

what the law is for.”44

Thus, Foucault says that Punishment must be temporary and its

duration must be integrated into the economy of the penalty. In

order to be acceptable, punishment must be seen as being in the

individual’s best interest. In this regard, a public spectacle

serves no useful purpose but it merely sensationalizes crime and

punishemt.

Hans Kelsen tells us that society is the “ordering of the living

together of human beings.”45 When human beings associated

themselves into a society, laws were created to regulate the

relationship between people, the government came into being, and

the rule of law was born. Law prevents the rule of arms where

people use force to assert or protect their interests. The

concept of Law is that of an order where the use of force is

forbidden except to the extent that it becomes a sanction or a

consequence of the unacceptable behavior of the individual memberWest Publishing Co., 1999), 889. Roscoe Pound says, “Some twenty years ago I pointedout two ideas running through definitions of law: one an imperative idea, an idea of arule laid down by the lawmaking organ of a politically organized society, deriving itsforce from the authority of the sovereign; and the other a rational or ethical idea, an idea of a rule of right and justice deriving its authority from its intrinsic reasonableness or conformity to ideals of right and merely recognized, not made, by the sovereign.” 44 Jones, Harry. “An Invitation to Jurisprudence” Columbia Law Review 74 (1974) 102445 Kelsen, Hans. “The Law as a Specific Social Technique” The University of Chicago LawReview 9 (1941) 75.

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of society.46 Foucault says that Punishment must be regarded as

a retribution that the guilty man makes to each of his fellow

citizens for the crime that has wronged them all. 47

Robert Summers provides an inexhaustive listing of social

functions:48 reinforcement of the family, promotion of human

health and a healthful environment, maintenance of community

peace, provision of redress of wrongs, facilitation of exchange

relationships; recognition and ordering of property ownership,

preservation of basic freedoms, protection of privacy, and

surveillance of private and official law-using activities.

The next step would be to determine how the law is able to

discharge these social functions-- how does law do what it

does?49

The maintenance of social order encompasses maintenance of peace

and order and preservation of basic freedoms and involves how the

society deals with crime This is more evident in the context of

law as providing a system of rewards and punishment. Kelsen

talks about “a social order that seeks to bring about the desired

behaviour of individuals by the enactment of such measures of

46 Ibid. Kelsen states, “Law then is an order according to which the use of force is forbidden only as a delict, that is a condition, but is allowed, as a sanction, that is, as a consequence.”47 DISCIPLINE AND PUNISH, supra note 1 at 109.48 Summers Robert, “The Technique Element in Law,” 59 California Law Review 73349 Ibid. Summers looked at law as a source of techniques that may be marshaled to helpdischarge social functions. An account of law’s basic techniques is a response to the question of how law can discharge social functions rather than to the question of what social functions law can help perform. He identifies the 5 basic social techniques: Grievance-remedial technique; Penal technique; Administrative-regulatory technique; and the private arranging technique.

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coercion...”50 The accepted conceptual framework is the

enactment of the penal technique which seeks to prohibit anti-

social behavior by punishing crimes. How effectively law is able

to maintain peace and protect rights of individuals depend on the

coercive power of the law or how much it motivates people to

adhere to the law. The perception however is that law has lost

its coercive character and therefore is unable to effectively

prevent anti-social behavior. Complementing the penal technique

which prohibits socially undesirable behavior is the

administrative regulatory technique which regulates wholesome

activities and promulgates standards before a grievance has

arisen. If people no longer respected the law then regulation of

any kind would be ineffective in protecting the interests of the

individual and society.

The social techniques identified by Summers may be utilized

descriptively in order to analyze the present status of law and

how it works. These techniques refer not just to what society

actually uses, but also to what society may possibly use.51 The

general perception was that law was not working equally and

fairly. Law was perceived to have failed in providing remedy

for the grievances in society, in regulating daily affairs or in

prohibiting crimes. Law cannot be reparative if it fails to

50 Kelsen, supra note 45, at 78. 51 Summers, supra note 10. Summers theory on the technique element of law has descriptive, normative and pedagogical significance. The descriptive significance isthat it represents techniques that society actually or might possibly use. It also opens a variety of normative possibilities regarding the appropriate technique to utilize on a particular problem.

20

punish the guilty as judged by the society. In the same way, it

loses its coercive power if the people feel that laws are not

implemented effectively. Law cannot be regulative if it does

not apply equally to all. Law was perceived to have failed in

conferring benefits for the public because it served the interest

of a few instead of working for the common good. And finally,

there can be no hope that law would be able to facilitate private

choice or facilitate individual self-realization if there is a

perceived problem in the attitude of the people.

In the same way, the coercive power of the law will be

strengthened if law works to prohibit crimes or regulate other

societal activities fairly, that is, if law is applied to all.

The laws exist to keep order in society. Foucault, relates that

“[i]n under twenty years, the principle so clearly formulated in

the Constituent Assembly of specific, appropriate, effective

penalties, constituting, in each case, a lesson for all, became

the law of detention for every offence of any importance, except

those requiring the death penalty.”52

Kelsen’s statement is supporting, “The specific social technique

we call law consists in the establishment of a coercive order by

means of which a community monopoly is constituted for applying

the measures of coercion decreed by the order.”53

52 DISCIPLINE AND PUNISH, supra note 1 at 116.53 Kelsen, supra note 45, at 82

21

It is now fitting to go back to what Roscoe Pound called the

rational or ethical idea running through the definition of law,

that is, “an idea of a rule of right and justice deriving its

authority from its intrinsic reasonableness or conformity to

ideals of right and merely recognized, not made, by the

sovereign”54 The non-legal sanctions such as punishments from a

Higher Being may even prove to have a greater coercive force as

compared to sanctions provided by law. It cannot be denied that

morality to a certain extent influences the coercive element of

law. Morality may be viewed in the context of Pound’s rational

or ethical idea where morality would assume a system of rules and

regulations followed because it is intrinsically reasonable

rather than because it was decreed. Morality may represent the

ideals of society which includes the concept of justice, equity

or equality and therefore must, as some interviewees believed, be

the basis of positive laws. Or morality may be considered as an

abstract and relative concept that becomes related to law only

incidentally and only for a particular time.

In dealing with violators of the law, the modern age called for a

way to make the able-bodied prisoners economically productive

while at the same time ensure that they are being punished.

Thus, the idea that prisoners are sources of labor became a new

trend. At the heart of society, on the public squares or

highways, the convict is a focus of profit and signification. 

54 Roscoe Pound, “More About the Nature of Law” Legal Essays in Tribute to Orrin Kip McMurray 513, 515 (1935); Black’s Law Dictionary, ed. Bryan A. Garner, 7th ed. (US: West Publishing Co., 1999), 889.

22

The utility of the convict serves a two-fold purpose. He is able

to be of service to society while at the same time removing the

stigma of terror on the concept of punishment but instead

impresses a justified penalty and teaches a lesson. As Foucault

thus said, “[t]he example is now based on the lesson, the

discourse, the decipherable sign, the representation of public

morality.” 55

The issue is not really so much as whether a particular form of

punishment is moral or immoral because the transformation of the

system punishment is based not on humanitarian reasons, according

to Foucault, but on finding the most effective modality to

inculcate discipline. It is here where the the importance of

the coercive power of law is highlighted, in the sense that it

serves to develop this discipline which, based on the sovereign’s

desire to control the body becomes a very sought after objective.

In looking at the development of highly refined forms of

discipline, of discipline concerned with the smallest and most

precise aspects of a person's body, Focaoult suggests:

Discipline developed a new economy and politics for bodies.

Modern institutions required that bodies must be individuated

according to their tasks, as well as for training, observation,

and control… Discipline created a whole new form of individuality

for bodies, which enabled them to perform their duty within the

55 DISCIPLINE AND PUNISH, supra note 1 at 110.

23

new forms of economic, political, and military organizations

emerging in the modern age and continuing to today. 56

III. POWER AS CAPILLARY AND THE CREATION OF DOCILE BODIES

The departure from sovereign understandings and practices of

power led to development of models of imprisonment. In focusing

on the need to exercise power over the body, prison became an

effective tool of technological power, used to inculcate

disciplines on the people.

He does so by meticulously tracing out the shifts in culture that

led to the prison's dominance, focusing on the body and questions

of power. Prison is a form used by the "disciplines", a new

technological power, which can also be found, according to

Foucault, in schools, hospitals, and military barracks.

According to Foucault, the main focus of reformists is to ensure

that the exercise of state power was a public power:

The switch to prison was not immediate. There was a more graded change,though it ran its course rapidly. Prison was preceded by a different form ofpublic spectacle. The theatre of public torture gave way to public chain gangs.Punishment became "gentle", though not for humanitarian reasons, Foucaultsuggests. He argues that reformists were unhappy with the unpredictable,

56 Discipline and Punish, in WIKIPEDIA, available at http://en.wikipedia.org/wiki/Discipline_and_Punish (last accessed April 11, 2008).

24

unevenly distributed nature of the violence which the sovereign would focus onthe body of the convict. The sovereign's right to punish was so disproportionatethat it was ineffective and uncontrolled. Reformists felt that the power to punishand judge should become more evenly distributed, the state's power must be aform of public power. This, according to Foucault, was of more concern toreformists than humanitarian arguments.

Out of this movement towards generalized punishment, a thousand

"mini-theatres" of punishment would have been created wherein the

convicts' bodies would have been put on display in a more

ubiquitous, controlled, and effective spectacle. Prisoners would

have been forced to do work which reflected their crime, thus

repaying society for their infractions. This would have allowed

the public to see the convicts' bodies enacting their punishment,

and thus to reflect on the crime. But these experiments lasted

less than twenty years.

Foucault argues that this theory of "gentle" punishment

represented the first step away from the excessive force of the

sovereign, and towards more generalized and controlled means of

punishment. But, he suggests that the shift towards prison which

followed was the result of a new "technology" and ontology for

the body being developed in the 18th century, the "technology" of

discipline, and the ontology of "man as machine".57

The concern was not merely to provide corporal punishment and

utilize the human resource but also to alter minds. Punishment

was no longer merely for retribution but a mode of transforming

57 Discipline and Punish, in WIKIPEDIA, available at http://en.wikipedia.org/wiki/Discipline_and_Punish (last accessed April 11, 2008).

25

behaviour. In this regard, imprisonment as punishment became the

focal point of reform.

The models of punitive imprisonment made detention a serious

reality. On the premise that idleness was the general cause of

crimes, prison models organized penal labour above all economic

imperatives. The element of correction included isolation.

Subsequently, imprisonment, with the purpose of transforming the

soul and conduct, made its entry into the system of civil laws.58

Foucault discussed the Walnut Street Prison which is considered

the center of prison reform worldwide. The development of

prison systems in Philadephia was continuously re-examined and

transformed:

Jails up until the time of the American Revolution were used largely for personsawaiting trial and other punishments and for debtors and sometimes witnesses.In the Old Stone Jail at Third and Market Streets in Philadelphia, old and young,black and white, men and women were all crowded together. Here, as in othercounty jails in Pennsylvania at the time, it was a common custom for the jailer orsheriff to provide a bar, charging inflated prices to the prisoners for spirits. InChester County, the English custom of charging for various other services wasalso in force, e.g. fees for locking and unlocking cells, food, heat, clothing, andfor attaching and removing irons incident to a court appearance. In 1776,Richard Wistar, Sr., a Quaker, had soup prepared in his home to be distributed tothe inmates in Philadelphia prisons, many of whom were suffering fromstarvation at the time and even several deaths. Wistar formed the PhiladelphiaSociety for Assisting Distressed Prisoners, but with the British occupation of thecity the next year, the organization was disbanded.Because of the rapidly growing population, a new jail was begun in 1773 onWalnut Street, behind the State House (later, Independence Hall). The new prisonhad the traditional layout of large rooms for the inmates. Initially, conditionswere little better than they had been at the old jail. Prisoners awaiting trial might

58 DISCIPLINE AND PUNISH, supra note 1 at 123.

26

barter their clothes for liquor or be forcibly stripped upon entering by otherinmates seeking funds for the bar. The result was great suffering when theweather turned cold. One estimate stated that 20 gallons of spirits were broughtinto the prison daily by the jailer for sale to the inmates. It was also considered acommon practice for certain women to arrange to get arrested to gain access tothe male prisoners.59

It was a group of prominent citizens led by Benjamin Franklin,

Benjamin Rush and others who organized a movement that made

possible the substitution of public labor for the previous severe

punishments. The public, however, reacted negatively to the

public display of convicts and the disgraceful conditions of the

Walnut Street jail. In 1787, the Philadelphia Society for

Alleviating the Miseries of Public Prisons was founded. An act

of 1790 brought about sweeping reforms in the prison and

authorized a penitentiary house with 16 cells to be built in the

yard of the jail to carry out solitary confinement with labor but

the increasing population made overcrowding a persistent problem.

The system of 24-hour separation of each prisoner coupled with

in-cell feeding, work, and sometimes vocational instruction, came

to be known as the Pennsylvania System or Separate System, and

remained the official position of the Pennsylvania Prison Society

throughout the 19th century, although the system and its unusual

architecture – a central hub and radiating cellblocks – were

seldom imitated in other states.

59 Norman Johnston, Prison Reform in Pennsylvania, available at http://www.prisonsociety.org/about/history.shtml (last accessed April 11, 2008).

27

Nevertheless, Walnut Street prison was one of the models that

considered the need to work on the prisoner’s soul. The prison

was no longer a mere administrative body but a modality for

altering minds. The recurrent idea is that prisons may be a means

to create what Foucault calms the docile bodies. The most

important thing in a prison was that this control and

transformation of behaviour were accompanied – both as a

condition and as a consequence – by the development of a

knowledge of the individuals.60

Foucault advanced the notion that discipline produces subjected

and practiced bodies which he called ‘docile’ bodies. He said

that:

Discipline increases the forces of the body (in economic terms of utility) anddiminishes these same forces (in political terms of obedience).  In short, itdissociates power from the body; on the one hand, it turns it into an ‘aptitude,’ a‘capacity,’ which it seeks to increase; on the other hand, it reverses the course ofthe energy, the power that might result from it, and turns it into a relation ofstrict subjection.  If economic exploitation separates the force and the product oflabour, let us say that disciplinary coercion establishes in the body theconstricting link between an increased aptitude and an increased domination. 61

It is advanced that discipline is brought about by a functional

system based on distribution of bodies through techniques of

enclosure, partitioning and ranking. There were also functional

spaces that allowed for supervision. Discipline is established

because the activities were controlled; the body movements were

under surveillance. The strategy provides a means by which

60 DISCIPLINE AND PUNISH, supra note 1 at 125.61 DISCIPLINE AND PUNISH, supra note 1 at 138.

28

movement is prescribed. In the end, the chief function of the

disciplinary power is to control behaviour and transform

individuals. Foucault says that the “exercise of discipline

presupposes a mechanism that coerces by means of observation.” 62

Foucault also considered the instrument of normalizing judgment

and examination as a means of inculcating discipline.

Normalizing judgment meant that punishment was to be corrective

in the sense that the erring individual must be given an

opportunity to regain his ranks. Punishment here is seen as

“only one element of a double system (of) gratification-

punishment” which “operates in the process of training and

correction” through the careful definition and bestowal of

rewards. 63

The techniques of an observing hierarchy and a normalizing

judgment are combined in the techniques of the examination. In

this sense it becomes a means of formation of knowledge, and thus

as knowledge-production, a source of power.

Foucault explored the concept of individuality in the context of

utilizing discipline. He said that:

Historically, the process by which the bourgeoisie became in the course of theeighteenth century the politically dominant class was masked by theestablishment of an explicit, coded and formally egalitarian juridical framework,made possible by the organization of a parliamentary, representative regime.But the development and generalization of disciplinary mechanisms constitutedthe other, dark side of these processes. The general juridical form thatguaranteed a system of rights that were egalitarian in principle was supportedby these tiny, everyday, physical mechanisms, by all those systems of micro-

62 DISCIPLINE AND PUNISH, supra note 1 at 170.63 DISCIPLINE AND PUNISH, supra note 1 at 180.

29

power that are essentially non-egalitarian and asymmetrical that we call thedisciplines. 64

In fine, the goal was to create docile bodies that may be

subjected to control, molded to a particular preferred behaviour

and transformed as individuals. The creation of docile bodies

requires constant surveillance which is known to the body to be

observed so as to affect and modify his behaviour. Foucault

suggests that particular form of institution conducive to

instilling discipline is exemplified by Jeremy Bentham's

Panopticon.

IV. PANOPTICISM AND THE CREATION OF DELINQUENTS

Prison has become the dominant form of punishment. The

Panopticon is a type of prison building designed by English

philosopher Jeremy Bentham in 1785.65 The concept of the design

is to have a central watchtower where the prisoners, partitioned

and isolated, know that they could be watched although they are

not aware of when they are actually being subjected to

surveillance. The feeling of being watched controls their

movements and subsequently paves the way for developing

discipline. Bentham himself described the Panopticon as "a new

64 DISCIPLINE AND PUNISH, supra note 1 at 222.65 Panopticon in Wikipedia, available at http://en.wikipedia.org/wiki/Panopticon (last accessed April 11, 2008)

30

mode of obtaining power of mind over mind, in a quantity hitherto

without example." 66

The inspiration of Bentham for the panopticon model is the plan

of a military school in Paris conceived by his brother which was

designed with the intention of finding a solution to the need for

easy supervision of a large number of men. It was intended to

be more economically advantageous as it was to be cheaper than

prisons of his time. According to Bentham's design, the

prisoners would also be used as menial labour walking on wheels

to spin looms or run a water wheel, thus decreasing prison cost

and providing a possible source of income. 67

Foucault invoked the design as metaphor for modern disciplinary

societies and its pervasive inclination to observe and normalize,

and further proposes proposes that not only prisons but all

hierarchical structures like the army, the school, the hospital

and the factory have evolved through history to resemble

Bentham's Panopticon. 68

Foucault asked, “Is it surprising that prisons resemble

factories, schools, barracks, hospitals, which all resemble

prisons?” 69 One of the central points of Foucault's discussion

of the carceral system is that the form of discipline associated

with the modern prison is not contained within prison walls, but66 Panopticon in Wikipedia, available at http://en.wikipedia.org/wiki/Panopticon (last accessed April 11, 2008)67 Id.68 Id.69 DISCIPLINE AND PUNISH, supra note 1 at 228.

31

derives from the society beyond those walls and the mechanisms of

control, examination and classification operate within all the

institutions that Foucault discusses.70

Indeed, power in its various forms flows through all of them.

Prisons resemble these other institutions not just because they

have similar architecture, but because they all fulfill similar

functions. The techniques, protocols, and strategies of such

instruments as schools and prisons, become discussed in the

context of similar architecture because the resemblance or

prisons with these other institutions is not coincidental.

Power, in its various forms, flows through all of them and in the

end the similarity could be attributed to the fact that it is

within these institutional frames where the work of fabricating

social-science-driven identities such as those of the criminal

and student are carried out.

One of the important issues discussed by Foucault is the

proposition that prison systems creates a new class which he

called delinquents. Foucault argues that the penitentiary became

a trap not only for prisones but for penal justice. The prisons

observed not just for immediate control, but also to create a

body of knowledge regarding the individual and his response to

reformation in order “to exact unceasingly form the inmate a body

of knowledge that will make it possible to transform the penal

70 Important quotes of Focault, available at http://www.sparknotes.com/philosophy/disciplinepunish/answers/quoteexp_4.html (last accessed April 11, 2008)

32

measure into penitentiary operations.” 71 The consideration and

the knowledge devoted to understanding the offender created the

character of the delinquent who is understood as a person rather

than merely his criminal act. The attempt to normalize the

delinquent establishes the criminal as existing before the crime

and even outside it. 

Foucault discusses the major criticisms of prison systems. He

explains that detention causes recidivism in the sense that the

system produced delinquents rather than corrected individuals.

Prisons produce delinquents by the very conditions imposed upon

inmates. Prisons bring together delinquents who then

collaborate with one another.

Delinquency, as a form of illegality, again becomes a means by

which to categorize individuals. The individuals who leave the

prison system, rather than being transformed, become a new class

which may have particular roles and functions from society, but

never that of an individual who has never been subjected to the

system.

V. THE PHILIPPINE PRISONS AND THE JUDICIAL SYSTEM

Raymund Narag published in 2005 a book based on his experience

entitled “Freedom and Death: Inside the Jail.” Apparently, he

was imprisoned for almost seven years in the congested Quezon71 DISCIPLINE AND PUNISH, supra note 1 at 251.

33

City jail for a crme he did not commit. In his book, painted a

harrowing picture of a prison system more in tune with the 19th

century than the modern age:

Narag laid out in graphic detail the subhuman existence inmates were forced toendure: the stench, the overcrowding, the toilets that ran like rivers through thecells, disease and death. Built in the 1950s Quezon City jail was supposed to house only 236 inmates.Today it is home to more than 3,000, packed in so tight that many inmates sleepstanding up. It is a scene repeated around the country in a prison system grosslyundermanned, poorly funded and neglected by the country’s economic planners.72

Chief Supt. Antonio Cruz, head of the Bureau of Jail Management

and Penology and the largest cog in a fragmented penal service,

citing overcrowding as the most pressing problem, said that the

system is near to breaking point. Cruz’s bureau, which is an

arm of the interior department, runs 1,100 prisons with a total

cell area of just over 56,000 square meters (about 603,000 square

feet) and a population at the end of 2006 of more than 60,000

inmates. 73 Most are awaiting trial while a small percentage is

serving sentences for minor crimes like theft and illegal drug

use.

There is an expanding Jail Population in the Philippines. It has

been reported that the prison population growth rate is seven72 Cecilia Morella, Philippine prisoners trapped in living hell, Feb. 3, 2007, THE MANILA TIMES available at http://www.manilatimes.net/national/2007/feb/03/yehey/top_stories/20070203top2.html (last accessed April 11, 2008).

73 Cecilia Morella, Philippine prisoners trapped in living hell, Feb. 3, 2007, THE MANILA TIMES available at http://www.manilatimes.net/national/2007/feb/03/yehey/top_stories/20070203top2.html (last accessed April 11, 2008).

34

times bigger than the annual population growth rate of 1.95

percent. Feeding, housing and guarding 76,306 inmates crammed

in 427 Bureau of Jail Management and Penology-run jails will cost

taxpayers P3.27 billion and Caring for another 34,770 prisoners

committed to seven Bureau of Corrections (BuCor) prisons and

penal colonies will cost an additional P1.03 billion. 74 Former

Senator Recto said that:

Persons being tried in courts or those already with light jail terms are sent toBJMP facilities while those sentenced for graver offenses are transported toMuntinlupa and six other BuCor prisons. The cost of keeping a detainee behindbars is a staggering P38,712 a year, Recto said. In comparison, our per capitahealth budget, using generous assumptions, is only P258 a year Keeping astudent in school for a year, at a cost of P7,450, is a lot cheaper than keeping aperson behind bars, he said , to referring to DepEds P134 billion budget for 18million students next year. With more people ending up in jails of BJMP everyyear it handled 42,000 inmates in just 36 months sardine can-typeaccommodations in jailhouses is becoming more of an understatement. Rectoillustrated this by citing these data: Total BJMP cell space is a mere 92,292 squaremeters nationwide, or a per prisoner jail space of 1.6 square meters. Literally,tig-isang dipa bawat preso, on the average, he added. On the BuCor front, five ofthe seven prisons are congested, with Muntinlupa, built for 8,700 but now hometo 18,845, reporting a more than 200 percent overcapacity, he said. The growthof prison population triggers a corresponding growth in the budget of jailservices, Recto said….We should declog courts of cases. Lower courts ended 2004with 776,529 pending cases. With 376,889 added in 2005, the total caseshandled by lower courts reached an all-time high of 1,219,706 that year, he said.We should also slowly adopt, even on a pilot basis, community service asalternative to detention, or as a way of reducing jail time. We can tap millions ofmanhours for city sanitation activities, even in the building of infrastructure,Recto concluded.75

74 Senate of the Philippines, Press Release, available at http://www.senate.gov.ph/press_release/2007/0307_recto2.asp (last accessed April 11, 2008)

75 Senate of the Philippines, Press Release, available at http://www.senate.gov.ph/press_release/2007/0307_recto2.asp (last accessed April 11,

35

While the prison system is meant to transform behaviour, or where

the work of fabricating social-science-driven identities such as

those of the criminal may be carried out, it would be impossible

and unlikely given the present state of the penal system. While

there is a call for improvement of the Judiciary and declogging

of the courts, such cannot be easily obtained. Under the

leadership of Chief Justice Hilario Davide, one of the more

controversial personas to grace the halls of justice, the

Judiciary embarked on a crusade with the aim of eliminating

corruption, promoting an independent judiciary and providing

swift justice. In 1998, President Joseph Estrada appointed

Hilario Davide, Jr. as Chief Justice, a position of enormous

responsibility. Barely a year as head of the Judiciary, Chief

Justice Davide conceived the Davide Watch with the vision of

achieving “a Judiciary that is independent, effective and efficient, and worthy of

public trust and confidence; and a legal profession that provides quality, ethical,

accessible and cost-effective legal service to our people and is willing and able to

answer the call to public service”76.

Just as the keystone of any democratic society is the Judiciary,

an efficient judicial system will significantly impact and

improve the penal systems in the country. A society that

depends on a rule of law requires an arbiter that would inspire

2008)

76 THE DAVIDE WATCH:Leading the Philippine Judiciary and the Legal Profession Towards the Third Millennium (December 1998); available from http://www.supremecourt.gov.ph; Internet: accessed 17 November 2007

36

people to adhere to the Code of Conduct embodied in the laws of

the land, and allow truth and justice to prevail over the

alternative--chaos and anarchy. In the same way that Foucault

said that the penal system is also a means to teach, it becomes

paramount that the people continue to believe that there is an

institution that could guarantee a check on the power they have

wielded on the government in their sovereign capacity, and an

assurance that the court who would hear their demands would have

the power and the wisdom to render to everyone their due. It

becomes important that the people understand that Lady Justice

did not cover her eyes because she does not wish to see the

oppression of the people but because she wishes to always be fair

and just.

In our history, there was a time when the Judiciary refused to

decide on issues they deemed to be political questions but which

the Filipinos considered to be social realities screaming for

answers. Whether this was right or wrong or legal falls to the

gray areas--the resolution of which depends on complex factors

and issues. What is clear is that there was a time when the

Filipinos lost faith in the arbiter of laws and history became

witness to civil unrest and a new government created through

extraconstitutional means. What is certain is that faith in the

judiciary is critical to a democratic society or people will

choose to defy the laws. It is against this backdrop that the

1987 Constitution began a new rule of law. Chief Justice Davide

once emphasized that the judiciary is the last bulwark of

37

democracy and the bastion of liberty, and that reform in the

judiciary is the key to sustain and promote and strengthen

democracy.77 The 1987 Constitution recognized the importance of

an Independent Judiciary, free from the whims and caprices of

partisan politics, granted with fiscal autonomy and

administrative independence, and a mandate to enforce rules that

would ensure speedy justice. Upon assumption into office, Chief

Justice Davide crystallized this constitutional mandate as the

Davide Watch and the “Judicial Renaissance”78 is said to have

began.

In our country, the Judiciary is vested with the power not just

to settle actual controversies involving legally demandable and

enforceable rights, but also to determine whether or not there

has been grave abuse of discretion on the part of any branch or

instrumentality of government.79 The power granted the Judiciary

is supreme and to the extent that they are occasionally called on

to play “the role of an infallible God.”80 With the granting of

this great power, the constitution accordingly requires that

members of the Judiciary must qualify by being more than just men77 Chat Session with Chief Justice Hilario Davide (July 10, 2003/2:00-3:00PM); available from http://www.rmaf.org.ph/Interactive-Awardee/transcripts/ts-davide.htm; Internet: accessed 17 November 200778 Justice ARTEMIO V. PANGANIBAN. The totality of reforms for a transformed judiciary; available from http://www.mb.com.ph/OPED2005102547533.html; Internet: accessed 17 November 2007: “Our Chief has brought the dawn of judicial renaissance to our country.We who now bask in the morning sun vow to continue his mission until our collective dream of rendering speedy, high-quality justice under a transformed judiciary will have been achieved.”79 1987 Constitution: Article 8 Section 1 80 People vs. Alicando, 251 SCRA 293, 307 (1995). Justice Puno writes, “With all our frailties, we are asked to play the role of an infallible God by exercising the divineright to give or take away life.”

38

of law but persons of proven competence, integrity, probity and

independence. Any reform to be instituted in this honorable

institution would have to be evaluated in view of the extent it

is able to empower the judiciary to faithfully fulfill the role

that society thrusts upon it. One of the most important impact

on the penal system of an efficient judiciary is its capacity to

resolve cases expeditiously and thus aid in the problem of

overcrowding in Philippine jails.

This is a difficult task considering the status quo of having

judges that are overworked and underpaid lead to the graver

problem of perceived graft and corruption in the Judicial system

and members of the Bar. Furthermore, there is the problem of

accessibility of the Courts especially to the poor and the

underprivileged. The end result is the idea that permeates the

consciousness of the ordinary Filipino--he cannot rely on the

Judiciary and that Justice is not really for all.

It is no surprise that one of the undeniable problems, perhaps

topping the list, is the backlog of cases that needs resolution

or decision. Justice delayed is after all justice denied.

The renovation and construction of Halls of Justice was also

prioritized in the last few years probably springing from the

general consensus that court facilities are poor and that there

are more cases filed than the courts have the capacity to

accommodate. After the implementation of the Judicial Reform

Program, 260 Halls of Justice were improved, renovated or

39

constructed81 and the judges who assessed their court facilities

to be adequate have doubled, from only 11% in 1996 to 23% in

2004.82 Nevertheless, the effect of backlogged cases has an

untoward effect on the problem of jail congestion.

Efficiency and effectiveness of the Judiciary depend not just on

increasing available resources and manpower but also on an

improvement in the manner, procedure and organization by which

justice is delivered. A 1993 Survey revealed that 42% of

respondents believed the Rules of Court to be cumbersome, 36%

were dissatisfied with the Judiciary and 65% of lawyers

complained of unpredictable decisions.83 The Davide Watch was

cognizant of these problems and reforms to improve dispensation

of justice have begun. The trend is to have more specialized

courts and some branches of the Regional Trial Courts have been

designated as special family courts, drugs courts, commercial and

intellectual and anti-money laundering courts, and environmental

courts.84 This has been warmly accepted by members of both the

81 Ibid. 82 Linda Luz Guerrero, Mahar Mangahas and Marlon Manuel. SWS Media Releases Archive: New SWS Study of the Judiciary and the Legal Profession Sees Some Improvements, But Also Recurring Problems 25 January 2005; available from http://www.sws.org.ph/pr050125.htm; Internet: accessed 17 November 2007 83 Ballano, Vivencio. The rule of Law, Oral textuality and justice in criminal court proceedings; available from http://www.admu.edu.ph/files/212/05_Ballano.pdf+survey+court&hl=tl; Internet: accessed17 November 2007

84 PBA: Promoting and Pursuing Bar Activism and Protecting Bench Accountability(KeynoteAddress of Chief Justice Hilario G. Davide, Jr., 114th Foundation Day Celebration of the Philippine Bar Association held on 28 April 2005); available from http://www.supremecourt.gov.ph/profiles/davide_speech/pba.htm; Internet: accessed 17 November 2007

40

Bench and the Bar and at present, many are satisfied with the

competence of judges of Family Courts and Drug Courts in

particular, and that small majorities of them are satisfied with

competence in Intellectual Property Courts.85

The Supreme Court also promulgated and revised rules on Criminal

procedure particularly focusing on dealing with children who have

become victims of abuse or who are in conflict with the law.

There is increasing consideration for the rights not only of

children but also of women. One of the problems in Philippine

jails is that minors are often allowed to mingle with adult

criminals. It is in this sense that the idea of the prison

system as facilitating the creation of a class of delinquents

become more evident in the Philippine society.

It would seem that juvenile delinquents continue to be thrown to

Philippine jails because they are the ones who are powerless in

society. Both judges and policemen are being viewed as corrupt.

There is an undeniable need to improve the administration of

justice in the country, More than the perception that the

Judiciary is not corrupt, it is equally important that the people

believe that Justice is accessible. A fundamental reform would

also make justice accessible by demolishing the concept that

anything related to the law is intimidating and that halls of

85 Linda Luz Guerrero, Mahar Mangahas and Marlon Manuel. SWS Media Releases Archive: New SWS Study of the Judiciary and the Legal Profession Sees Some Improvements, But Also Recurring Problems 25 January 2005; available from http://www.sws.org.ph/pr050125.htm; Internet: accessed 17 November 2007

41

justice are impenetrable. The gap between the different strata

of society should be bridged ad perhaps truth may be given to

what President Ramon Magsaysay once promised--that those who have

less in life should have more in law.86

In light of these realities, it is unlikely that the penal system

in the Philippines would improve in the long run. The US State

Department, in a human rights report on the Philippines two years

ago, said:

the country’s prison conditions were “rudimentary and some times harsh,” were“over crowded, lacked basic Infrastructure, and provided prisoners with aninadequate diet.” It said the “slow judicial process exacerbated the problem ofovercrowding. Some inmates took turns sleeping, and others slept on their feet”.The study also cited “widespread corruption” among guards as well as “reportsthat guards abused prisoners,” including women who were “particularlyvulnerable to sexual and physical assault by police and prison guards”. Cruzadmits congestion exposes inmates to “diseases, contamination,” and warns theproblem will probably get worse before it gets better. But he denies prisoners arephysically or sexually abused. He estimates the prison population will rise byabout 13 percent a year over the next eight years mainly due to case overloadwithin the undermanned judicial system, as well as higher bail bonds imposedon drugs offenders who make up 60 percent of the national prison population.87

VI. THE UNSEEN ENEMY

86 Jara, Manolo, “Missing component” From the Newsroom; available from http://www.manilatimes.net/national/2004/jul/09/yehey/opinion/20040709opi5.html; Internet: accessed 17 November 2007

87 RP Prison system a Living Hell, Philippine Daily Inquirer, February 03, 2007, http://www.preda.org/work/child%20rescue/jreport/r07020301.html

42

The discussion of Foucault has emphasized and convinced of the

concept of constant observation, normalizing and examination as a

means of controlling behaviour.

The recent problem facing the world today is that of terrorism.

In this light, the world is suddenly faced by an enemy which it

cannot see and can therefore be difficult to control. In its

attempt to control the problem, the probative value of

surveillance so emphasized by Foucault comes into play.

The seemingly unseen enemy is terrorism. This problem is a

reality. In Israel and Palestine, terrorism has been etched as a

facet of their everyday lives. In 1985, an Air India jet was

bombed killing all 329 people aboard.88 The victims of terrorism

span the entire globe and on the fateful day of September 11,

2001, the world was caught unawares with the explosive reality

that even the all-powerful United States is not beyond reach of

fatal terrorist design. With the crumbling of the twin towers,

the United States vigorously campaigned for an all out war

against terrorism.

The United States seeks to control the enemy but it cannot do so

if it cannot observe the terrorist. Through its political and

economic muscles, U.S. calls on a world alliance and implores

international support and cooperation for its agenda.89 In the88 GRISET AND MAHAN, TERRORISM IN PERSPECTIVE 278 (2003)89 Id. at 277; Resurrected Anti-Terrorism Bill threatens human rights in exchange for aid, May 13, 2002, available online URL http://www.apl.org.ph/ps/2004/20040203atb.htm (Accessed 19 December

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past two decades, roughly one-third of all terrorist attacks

worldwide have been aimed at US Citizens or property.90 The zeal

by which the United States has engaged in the war against

terrorism is easily understood. The commitment of other nations

is borne from the reality that terrorism is often a palpable

problem in many societies. In July 2005, terror was in the

underground trains in the United Kingdom killing 56 people and

injuring hundreds. In the Philippines, we have the notorious

Abu Sayyaf who gained even greater international prominence after

keeping as hostage American Gracia Burnham and her husband.91

The Bombing of the Light Rail Transit in Manila on December 30,

200092 and the Valentines Day bombing in 2005 are among the major

domestic terrorist attacks that claimed the lives of innocent

Filipinos. The Abu Sayyaf’s Jihad is said to be part of the

network of international terrorism with the Abu Sayyaf’s fighters

funded and trained by al-Qaeda.93 Indeed, the war against terror

is a war without borders.

2005). In the post-September 11 world, the U.S. government’s counterterrorism policy is seen as an integral part of its foreign affairs policy. The fact that the passage of the Anti-terrorism bill(ATB) is a requirement for the flow of more US aid(in line with US-led war against terrorism) leads to the opposition of several sectors in the Philippines to the passage of said bill. The Alliance of Progressive Labor and Akbayansays, “The ATB qualifies the Philippines for more aid from the United States, which the people the ATB would affect will eventually have to pay for in the long run as debt. A myopic prescription for a problem with roots deeper and more wide-ranging than the government is willing to admit.” 90 Id. at 278-279. The United States and its interests are attractive to transnationalterrorists and the explanation is traced to the changes in International Politics due to the end of the Cold War and the fact that the emergence of the United States as theWorld’s sole super power has fueled resentments around the globe. 91 MARIA RESSA, SEEDS OF TERROR(AN EYEWITNESS ACCOUNT OF AL-QAUEDA’S NEWEST CENTER OF OPERATIONS IN SOUTHEAST ASIA) 104-107 (2003)92 Philip Tubeza, Terrorist raps filed vs. Asia’s Most Wanted Man, PHILLIPINE DAILY INQUIRER, July 8, 2003, available online URL http://www.inq7.net/nat/2003/July08 (Accessed December 21, 2005)93 Supra note 4, at 107-110

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It is a truism to say that the fanaticism of certain groups

because of some cause they believe themselves to be fighting for

has cost the world thousands upon thousands of human lives.

The direct attack on the United States seems to have quickened

the tempo on the enforcement of Anti-terrorist measures all over

the world. While Malaysia used to be criticized for its Internal

Security Act and the alleged human rights violation that has

resulted from its implementation, after the September 11 attack,

the United States has become silent with regard to the human

rights record of Malaysia.94 In the United States, the

equivalent is the Patriotic Act. In our neighboring Asian

countries, the Internal Security Act has been utilized as a state

measure against terrorism. In the Philippines, the Human

Security Act is regarded by some of the opposition as a

resurrection of the Anti-subversion law.

Police power is the most essential, insistent and least limitable

of powers; it rests upon public necessity, and self-protection.95

To justify the State in thus interposing its authority in behalf

of the public, it must appear, first, that the interests of the

public generally, as distinguished from a particular class,

require such interference; and, second, that the means are

reasonably necessary for the accomplishment of the purpose, and

94 Malaysia's Internal Security Act and Suppression of Political Dissent: A Human Rights Watch Backgrounder, 2002, available online at URL http://www.hrw.org/backgrounder/asia/malaysia-bck-0513.htm (Accessed December 19, 2007)95 United States v. Toribio, 15 Phil. 85, 97 (1910). The police power rests upon necessity and the right of self-protection

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not unduly oppressive upon individuals.96 It is within this

framework that the objections to the Anti-terrorism bill will be

raised.

The Human Security Act justifies the invasion of a person’s

privacy through provisions that provide for communication

assistance for law enforcement agencies through surveillance of

private communication.97 The law provides that when a peace

officer certifies that the information likely to be obtained by

surveillance is relevant to an ongoing investigation—directed,

supervised and monitored by the council—the court shall issue an

ex parte order requiring a provider of wire or electronic

communication service to provide assistance to the law

enforcement agency.98 Whatever evidence gathered in violation of

a person’s right to privacy may be used against the person and

lead to the person’s warrantless arrest. Terrorism is a reality—a

complex reality. Admittedly, terrorism cannot be fought sitting

down and counterterrorist measures may call for teeth gnashing

and battling eye to eye. Many governments of the world have

tried to utilize the concepts of surveillance to identify the

enemy.

In a sense, the United States through alliance with various

countries also utilizes the technique of isolation. It seeks to

confine the problem to particular global areas. If a country is

96 Id. at 98, citing Lawton vs. Steele, 152 US 133, 136.97 Anti-terrorism bill §19 (2005)98 Anti-terrorism bill §19 (2005)

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suspected of harbouring a terrorist, the country becomes isolated

politically and economically. If worse happens, it may be

attacked much like the bombings over Afhghanistan suspected of

being the location of the elusive Osama Bin Laden.

These concepts of surveillance and isolation are central in the

discussion of Foucault. This only shows that these methods, in

an expanded sense, are techniques of power, that can actually be

applied in different aspects of human life.

The consequence of this techniques is control of the ordinary

citizen’s behaviour. In effect, the various countries pass laws

in an attempt to control the uncontrollable. They do this

through the model of discipline set forth by Foucault where there

is necessity of hierarchal observation. Knowing that the

government may listen to your conversations, may disregard your

claim of privacy brings the people to the realm of a panopticon

prison, though the jail cell is a virtual world of electronic

communications and high technology surveillance systems. In

making these laws, the government or the sovereign power attempts

to transform behaviour by propagating the idea that one may be

watched and heard at any time and one may not even know it.

VII. INSIGHTS AND CONCLUSION

In Discipline and Punish, Foucault provides an assessment of modern

disciplinarity, which he casts as a departure from sovereign

understandings and practices of power, and a progression instead

into understandings and practices of power as capillary, tied to

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the reformulable techniques, protocols, and strategies of such

instruments as schools and prisons, within the institutional

frames of which the work of fabricating social-science-driven

identities such as those of the “criminal” and “student” can be

carried out.

While Foucault provides for the application of the prison system

in other institutions like schools and hospitals, the real

essence if the idea that the social-science-driven identities are

actually a product of a technique utilized for the generation of

knowledge and power, in which the criminal is controlled, no

longer by a public spectacle, but by punishment that is

masquerading as one that has the criminal’s best interest as a

primary objective. This means that the attempt to transform the

criminal has as its aim his integration in society. In the same

way, students are made to undergo the rigorous discipline in

educational institutions and their behaviour through years of

education are molded into the direction desired by the sovereign

power.

The ideas of Foucault are universal and have extensive

application. His concept of power and the interrelation of

power and knowledge is a modern age, and perhaps, timeless

reality. One may immediately recognize the system of discipline

utilized in schools where students come out believing that the

Aryan race if superior or that the Tutsis of Africa deserve to

die. It is an efficient and systematic technique of controlling

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behaviour. The coercion is subtle and not immediately seen

because it is embodied in the very system that transforms an

individual.

In this sense, Foucault persuades one to stop clinging to notions

that are propagated by authority and encourages that one be

cautious, to never take things as they are, to question within

reason. The struggles of a changing society become possible

only if we recognize the impermeability of law, that fibre which

masquerades as the bond that holds ordered society together.

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