by Chief Justice ARTEMIO V. PANGANIBAN (Ret.)

           Since my graduation from the Far Eastern University Institute of Law in 1960 and throughout my legal career, especially during my more than 11 years in the Supreme Court, I espoused “Liberty and Prosperity Under the Rule of Law” as my legal philosophy.

Upon becoming Chief Justice of the Philippines, I pursued these twin ideals of liberty and prosperity even more fervently.  Indeed, they have become the cornerstones of my magistracy.  For that reason exactly, I brought the philosophy to other countries and embarked on a knowledge- sharing-cum-lecture circuit in May and June of 2006, my last year in the judiciary. My aim was to broach and carry forward these twin beacons to jurists, legal practitioners, business heads, civil society leaders, diplomats, academics, and developmental agencies in several countries — especially the United States, Spain, France, the Netherlands and the United Kingdom.

Global Forum on Liberty and Prosperity

In all the meetings I attended during that year (2006), I proposed the holding of a Global Forum on Liberty and Prosperity, which served as the valedictory of my chief justiceship.  The Forum was held in the Shangri-la Makati Hotel on October 18-21, 2006.  It preceded my formal retirement ceremony on December 6, 2006.  Over 300 jurists and lawyers from all over the world attended the Forum.

Noteworthy among the attendees were the Chief Justices of Canada, Russia and France who were all bestowed honorary doctoral degrees by Ateneo de Manila University, University of Santo Tomas and our own Far Eastern University.

Several distinguished judicial and bar leaders of the world could not make it because of conflicts in schedules, but they sent their personal greetings, among them, President Rosalyn Higgins of the International Court of Justice; Chief Justice Willibord Davids of the Netherlands; President Francisco Jose Hernando Santiago of the Spanish Supreme Court; Lord Philipps of Worth Matravers, the Chief Justice of England and Wales; and Ms Karen Mathis, president of the American Bar Association.

To prepare our people for this international gathering, several fora were conducted in our country.  In these gatherings were discussed not only the theoretical foundations of these twin beacons of justice but, more important, concrete ways of implementing them locally.

The first of these domestic fora was the National Academic Forum attended by distinguished and renowned scholars of the law in our country on July 20, 2006.  The National Forum on Liberty and Prosperity followed on August 24-25, 2006. It was participated in not just by justices and judges, but also by representatives of our legislative and executive branches of government. Also in attendance were law practitioners, business leaders and civil society advocates.

On top of these efforts, I wrote a book entitled Liberty and Prosperity.  This book, together with a searchable compact disc (CD) version, was circulated to all delegates.

My aspirations drew financial and logistical support from the United Nations Development Programme (UNDP), the World Bank, the Asian Development Bank (ADB), the Canadian International Development Agency (CIDA), and the US Agency for International Development (USAID) through The Asia Foundation (TAF), the American Bar Association (ABA), and the Rule of Law Effectiveness (ROLE).

Let me briefly explain the various events, especially during my final three years in the judiciary in 2004 to 2006 that propelled Liberty and Prosperity as twin beacons of justice.

Safeguarding Liberty

The history of the world shows a long and arduous road to freedom.  From the Magna Carta of the British to the French Revolution, and from the Declaration of Independence of the Americans to the struggle for nationhood of the Filipinos, calls for civil and political liberties reverberated in the annals of our past.  Liberté, égalité, fraternité, ou la mort! Tierra y libertad!  Mabuhay ang Republika ng Pilipinas!  These were some of the battle cries for nationhood and freedom.

Indeed, history rings for the peoples’ right to be free — free to live peacefully, to earn a living, to participate in political processes, to vote and to be voted for; as well as to speak, to assemble peaceably for the redress of grievances, and to worship one’s Creator the way one deigns, among others.

In these battles to uphold freedom throughout the past centuries, the judiciaries of the world have had to cope and innovate with a never-ending saga of fortitude and forthrightness.  So, too, must they face up to new challenges brought about by the advances in technology and the demands of our global community.  Thus, even now, laws and judicial doctrines safeguarding liberty are continuously tested to the limit.

Indeed, traditional conceptions of liberty have paved the way to new freedoms. In the Philippines, for example, the right to conduct public opinion polls and to publish their results, a right born recently of the information age, is now considered an essential part of the traditional freedom of speech and expression.[1] I am sure that many countries have had to face similar questions in the past; and that they have given wise counsel, as well as guidance, on the legality of exit polls as part of the freedom of speech.[2]

Furthermore, recent money-laundering activities and threats of terror have become new objects of calibration in the defense of human freedom.

Jurisprudence Upholding Liberty

During my term as chief justice, the Supreme Court promulgated three landmark Decisions upholding liberty.  These are (1) the right of Congress to summon executive officials for investigations in aid of legislation, in conjunction with the people’s right to information on matters of public concern;[3] (2) the right of citizens to peaceful assembly for redress of grievances;[4] and (3) the rights of the people under a declaration of a “state of national emergency.”[5]  In all these cases, our Supreme Court upheld the primacy of civil liberties over governmental actions.

The struggles for civil and political liberties by other judiciaries are, of course, just as long and difficult.  An example is the Cour de Cassation (the highest court of France). In a case involving a former official whose employment had been terminated by the African Development Bank, the French court ruled on January 25, 2005 that the right to a hearing before an impartial tribunal prevailed over the jurisdictional immunity granted by a State to international organizations.[6]  It explained that a party’s inability to refer its claim to a competent judge constituted a denial of justice and thus established the competence of the French judiciary to acquire jurisdiction.  Thus, it upheld the former bank official’s fundamental right to a day in court.

Jameel v. Wall Street Journal Europe Sprl[7](promulgated on October 11, 2006), which echoes the landmark Reynolds v. Times Newspapers Ltd.,[8] has been hailed as a triumph of the freedom of expression and of the press.  On the other hand, the Lords of Appeal of the House of Lords, the court of last resort in the United Kingdom at that time, upheld the right to publish allegations about public figures on matters of public interest, as long as the journalist acted responsibly.

Further, on April 26, 2005, the Spanish Supreme Court ruled in favor of a Complaint filed by three non-governmental organizations on the regulation and management of detention centers for foreigners.  The ruling annulled certain provisions of a ministerial Order, particularly with respect to stringent discipline measures (such as the isolation and the regulation of the behavior of detainees, as well as the rules on visits and communications).[9]

Indeed, courts have the duty to safeguard the liberty of all peoples.  In Hamdan v. Rumsfeld (decided on June 29, 2006), the United States Supreme Court held that a military commission convened to try a Yemeni national captured in Afghanistan lacked the power to proceed, “because its structure and procedures violate both the Uniform Code of Military Justice and the Geneva  Conventions” on the matter.  Holding that the military commission afforded less protection than that guaranteed under those laws, the US Supreme Court noted substantial deviations from the fundamental rights accorded to the accused, such as those precluding defendants and their counsel from learning what evidence was to be presented against them during any part of the proceeding; and those involving the admission of any evidence, such as hearsay testimony that had not been sworn to and statements gathered through coercion.

In Rasul v. Bush (decided on June 28, 2004), a case also originating from the hostilities in Afghanistan, the US Supreme Court ruled that its district courts had jurisdiction to consider challenges to the legality of the detention of aliens (who in this case were Australians and Kuwaitis) captured abroad and incarcerated at Guantanamo Bay.

Nurturing Prosperity

While safeguarding liberty is a traditional and fairly common task for the judiciary, the nurturing of prosperity may not be too familiar to the courts.  Some jurisdictions may even take the view that the judiciary need not exert conscious thought and effort to nurture progress.  Nonetheless, I maintain that whatever the status of a country’s economic progress, courts must contribute to the achievement or nurturance of prosperity; or, at the very least, to the alleviation of poverty, disease and disability.

Important world events showed the necessary — nay, indispensable — nexus between political liberty and economic prosperity.

Mandate to Uphold Economic Rights

          First. The Universal Declaration of Human Rights (UDHR), which was adopted by the General Assembly of the United Nations on December 10, 1948, has emerged as the fundamental law of human rights. The UDHR recognizes the entitlement of the common people to liberty and prosperity.  This fact is evident in the following provisions of its Preamble:

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

x x x                             x x x                           x x x

“Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promotesocial progress and better standards of life in larger freedom,”

The UDHR also recognizes — aside from the basic right to life, liberty and security of persons (Articles 3 to 21) — their right to economic, cultural and social rights (Articles 22 to 27).[10]

In the Philippines, our 1987 Constitution[11] commands the State to “promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty x x x.”

Equally significant, Article XII on the National Economy and Patrimony mandates “a more equitable distribution of opportunities, income and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.”[12] Our Constitution likewise demands the institutionalization of social justice.[13]

That these provisions are not self-executory does not in any way diminish their legal significance.  They direct the legislature to enact laws to alleviate poverty, and they provide the courts with a juridical context within which to interpret other constitutional provisions and laws.

Global Efforts to Solve Economic Deprivation

Second. Another impetus to my twin advocacies pertains to developments in the private sector. More and more people around the world are realizing the need to fight poverty and deprivation and are pooling enormous resources and talents to combat this common menace.

Time magazine’s “Persons of the Year” for 2005 — the world’s richest multi-billionaire couple, Bill and Melinda Gates — staged their own campaign for vaccinations and public health care.  Their target: to save 700,000 lives.[14]

Billionaire investment guru Warren Buffett has joined the crusade with a mind-boggling $30 billion donation of blue-chip Berkshire Hathaway stocks to the Gates Foundation.[15]

In September 2006, billionaire financier George Soros announced that he was contributing $50 million to the Millennium Villages Project.  This nongovernmental initiative seeks to show that closely focused development projects can alleviate severe poverty within a few years.[16]

Even the famed Nobel Peace Foundation has veered its lenses to poverty alleviation, as it has awarded the Nobel Peace Prize to Bangladeshi Muhammad Yunus on October 14, 2006.  He and his Grameen Bank had pioneered microcredit and proved that the poor’s misfortunes could be transformed by helping them become self-employed.  Over 6.6 million impoverished Bangladeshis have availed themselves of microloans.[17]

Philanthropic endeavors in Asia have likewise brought back hope to the homeless, the blind, the poor, and the neglected.  In 2006, my last year in the Supreme Court, six exceptional Asians and one exemplary organization were awarded the Ramon Magsaysay Awards[18] — Asia’s equivalent of the Nobel Prize. One Ramon Magsaysay Awardee, Antonio Meloto of Gawad Kalinga, has been largely instrumental in building private mass housing projects for slum dwellers in the Philippines.

Need for a Stable Judiciary

Third. Still another factor behind the call for both liberty and prosperity is the growing consensus among developmental institutions that a stable judiciary and a firmly established rule-of-law system are necessary means to achieve liberty and prosperity.  Institutions, like the United Nations Development Program (UNDP), the World Bank (WB), and the Asian Development Bank (ADB), have realized that poverty alleviation and economic growth cannot be attained, unless there is “a well-functioning judicial system [that] enables the State to regulate the economy and empower private individuals to contribute to economic development by confidently engaging in business, investments and other transactions.”

This stance explains why the UNDP is passionate about broadening the poor’s access to justice; why the WB wants “an effective and efficient judicial system that protects citizens from the abuses of government and safeguards the rights of the poor”;[19]and why the ADB desires “to enhance the effectiveness and the accountability of the judiciary.”[20]

During the Global Forum, ADB President Haruhiko Kuroda and WB’s Joachim von Amsberg discussed the necessary nexus between progress and a stable rule-of-law environment.  Both agreed that the rule of law formed the foundation of sustained economic development.

If I may paraphrase Mr. Amsberg, law and justice are basic ingredients of development.  Thus, there is no choice to be made between liberty and prosperity. Both are imperative paradigms in society. For the same reason, President Kuroda observed that the People’s Republic of China was undergoing a massive law reform program, so that it could continue to play a critical role in the world economy.

These three developments, among several others, affirmed to me that the prosperity of the peoples of the world requires as much nurturing in the present century as that accorded to liberty in the past. These developments have instilled in me my advocacy of justice and jobs, freedom and food, integrity and investments, ethics and economics, democracy and development; in short, liberty and prosperity.

Liberty and Prosperity as a Philippine Judicial Policy

Pursuant to this effort to protect liberty and to promote prosperity, our Philippine judiciary – at least during my term – leaned towards a dual standard of judicial review.  First, in cases involving liberty, the scales of justice weigh heavily against government and in favor of the people — especially the poor, the oppressed, the marginalized, the dispossessed and the weak.  Laws and actions of government and its instrumentalities restricting the fundamental rights of our people come to the courts highly suspect in their constitutional validity.  Second, in cases involving prosperity and development issues, deference is generally accorded to the political branches of our government; namely, the Presidency and Congress.

A very good example of how the legal profession and the judiciary coped with the increasing importance of deferring to the political branches of government in matters involving the economy and well being of our people is the case of Tanada vs Angara[21] in which the Supreme Court unanimously upheld the constitutionality of the Senate’s ratification of the World Trade Organization (WTO) Agreement.

In that case, the petitioners assailed the Philippine adherence to the WTO because, allegedly, (1) the WTO requires the “Philippines to place nationals and products of member-countries on the same footing as Filipinos and local products; and (2) the WTO intrudes, limits and/or impairs the constitutional powers of both Congress and the Supreme Court” thereby violating the mandate of the 1987 Constitution “to develop a self-reliant and independent national economy effectively controlled by Filipinos x x x and (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally produced goods.” In short, the WTO Agreement allegedly collided with the “economic nationalism” or “Filipino First” policy of our fundamental law.

In its unanimous decision that I, as ponente, had the honor of writing, the Supreme Court held, “All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the basis of equality and reciprocity and limits protection of Filipino enterprises against foreign competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the development of the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either. It fact, it allows an exchange on the basis of equality and reciprocity, frowning only on competition that is unfair.”

Since the matter at hand involved national economic development, the Court’s decision adhered to the deferential policy I explained earlier, thus: “Ineludably, what the Senate did was a valid exercise of its authority. As to whether that exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between the elected policymakers and the people. As to whether the nation should join the worldwide march toward trade liberalization and economic globalization is a matter that our people should determine in electing their policymakers.”

It would have been easier for me to have written a decision debunking the Senate’s ratification of the WTO Treaty because – at the time, in the 90’s – “Filipino First” was the popular economic jargon. But I had to adhere to my own philosophy of respecting the decisions of the policy makers in matters involving the economy and well being of our people.

A later decision[22] also involving the economy, specifically the constitutionality of the Mining Law, which I also wrote for the Court, laid down this prosperity doctrine in clearer language, “The Constitution must be read in broad, life-giving strokes. It should not be used to strangulate economic growth or to serve narrow, parochial interests. Rather, it should be construed to grant the President and Congress sufficient discretion and reasonable leeway to enable them to attract foreign investments and expertise, as well as to secure for our people and our posterity the blessings of prosperity and peace.”          

Elsewhere, courts had also to perform a delicate balancing act between the demands of liberty and the needs of prosperity.   In British Columbia Securities Commission v. Branch,[23] the Supreme Court of Canada had to choose between the freedom from testimonial compulsion and the right of the government to compel a company’s officers to attend an examination under oath and to produce all pieces of information and records in their possession as provided under that country’s Securities Act. Ruling in favor of the securities commission, the Canadian Court noted that the “effective implementation of securities legislation, which has obvious implications on the nation’s material prosperity, depends on the willingness of those who choose to engage in the securities trade to comply with the defined standards of conduct.”

Search for a Model for Economic Development

          As the world searches for the proper balance between liberty and prosperity and a model for economic development, various theories have been proposed. For instance, Professor William Easterly in his book entitled Elusive Quest for Growth[24] opined that most economically advanced countries had adopted liberal democracy, in which human rights were zealously protected.[25]  He added that under those benign regimes, entrepreneurs felt comfortable and thus invested their money for the long term, thereby propelling stable economies. But when confronted with the other models of economic prosperity in Asia, Latin America and Eastern Europe, he conceded that there was no single formula for rapid economic growth.

Another theory proposed to explain how progress has been made possible in some countries of the world relates a country’s stability and progress to the degree to which it is “open,” both within its borders and to the outside world.[26]  What is interesting about this theory is that it attempts to provide a framework both for countries that owe their stability and progress to their success in isolating themselves from the outside world,[27] on the one hand; and, on the other, those whose stability may be traced to their openness to social, political, and economic change.[28]

A group of four economists have tried to find an explanation of progress in various countries’ legal systems — whether common law or civil law.  They are Rafael La Porta, an Argentinian; Florencio Lopez-de-Silanes, a Mexican; Andrei Sheifler, a Russian who immigrated to the US when he was 15; and Robert Vishny.  Their theory has given rise to what is now known as “law and finance.”[29] According to this school of thought, common-law countries are more economically advanced than those subscribing to civil law. The former allegedly tend to be less corrupt and purport to protect both shareholders and creditors better than civil law countries do.[30]

WB’s Amsberg described how various countries dealt with the issues of liberty and prosperity within their social, cultural, economic and political milieus.  According to him, historically, the United States placed greater emphasis on individual freedoms; European societies, on equality; while some Asian countries with flourishing economies, on strong states.

Our own experience in the Philippines demonstrates that liberty and prosperity must go hand and hand.  One cannot be sacrificed for the other. After all, during the years of Martial Law, authoritarian rule was proven to be incapable of producing meaningful long-term economic progress.  Even more important, our people value their freedoms very dearly and will not exchange them for food.  Indeed, Filipinos may endure occasional hunger, but they will never tolerate injustice and indignity for long.

Epilogue

I have attempted, as best as I can, to present the twin beacons of liberty and prosperity in the context of history, as well as of existing and emerging realities in many countries.

How to find the right balance between these two paradigms may be found in each country’s unique circumstances.  By no means is the perception of balance in one country to be taken as an absolute prescription for others. Indeed, each country and each sector of society[31] has its own history, experience, temperament, economics, culture and politics, which should determine how viable liberty and prosperity would be in its jurisdiction.

Nonetheless, I present liberty and prosperity as a framework within which the various countries’ courts, congresses, parliaments, cabinets, bar associations, judicial institutes, academes, business communities, and civil society may formulate their missions and visions for the future.  They may do well to rally around the commonalities of our countries’ experiences, rather than our differences.

As science and technology march on, the scope of the rights safeguarding liberty and nurturing prosperity also expands.  Thus, the right to travel has been broadened by the gas combustion engine, the jet plane and soon, by rockets and time machines.  The freedom to communicate, initially inspired by the spoken and printed word, has been exponentially stretched during the last 20 years by television, cell phones, personal computers, Internet, broadband and social media like Facebook and Twitter. Magic Jack, Skype and similar new technologies have also dramatically reduced the cost of telecommunications.

These bursts of technology in communications have been matched by the dramatic rise in population and the demand of the poor for a more equitable distribution of the wealth of this planet.  The need for food, medicine, health and general well being has likewise escalated.

Governments are no longer the sole source of benevolence and economic power.  Entrepreneurship has made gigantic strides both in our country and in the world such that many multinational companies and international banks have gained bigger assets and earned more revenues than some governments.

All these advances in the political and economic spheres should not escape the attention of lawyers and jurists who must adjust their sights and goals, their attention and agenda, their focus and work. They must not only safeguard liberty; they must, at the same time, nurture the prosperity and well being of the world’s ever-growing population.

[30] According to research published by the scholars beginning in 1998, countries that come from a French civil-law tradition struggle to create effective financial markets, while countries having a British common-law tradition succeed far more frequently.