by KRISTIAN JEFF AGUSTIN
Balancing act
Advocacies espousing equality, freedom of speech, free press, social responsibility, and the like are grounded on normative discourse and ethical principles characteristic of civilization, and concomitant of modernization. However, most contemporary and current trends more or less emerged from the idea of the public sphere and deliberative democracy put forward by sociologist and critical thinker Jürgen Habermas1 (1962), whose utopian ideals hitherto generate ripples. Decades later, Yale scholar Seyla Benhabib2 argued that normative theories lie in between highly critical discourse and utopian ideals (1986), as if such a spectrum exists. Benhabib’s critique of Habermas’ normative (and almost reformist) views elucidated the diminishing of “utopian dimensions of critical theoretical thought” (Misgeld 1987) entailed in Habermas’ endorsement of practical discourse.3 Benhabib further explained that utopian dimensions are framed within abstract concepts (i.e., solidarity, friendship, love and care) instead of pragmatic approaches to politics, for example.
I think normative theories and discourse must strike a healthy balance between critique or critical discourse and utopian ideals. The model of media ethics by British media scholar Nick Couldry4, for instance, raised points on how we, just like any journalist or researcher, must constantly and practically negotiate between our critique of society (or culture, or institutions) and our idealistic universalist views in order for us to propose and promote ethical practices—whether in journalism, research, law, and business, among others. A good cause or advocacy must serve as a bridge between our critique of social practices (that stems from abstract notions of inequality, injustice, oppression, et cetera) and idealistic propositions (likewise involving abstract principles such as equity, justice, empowerment, et cetera) by providing not only theoretical models but also practical solutions.
When framed within normative theories, the public sphere is often regarded as a whole or homogeneous sphere of human interaction, instead of separate and diverse entities that operate within certain (often differing) norms and cultures, whether interlinked or not. Some advocacies that rouse the public’s interest fall into the trap of espousing utopian ideals of equality, freedom, or justice and stop merely at critiquing society’s real conditions of existence.
The judicial philosophy of liberty and prosperity is no different from normative theories. It is in fact considered as an idealist philosophical thought whenever it is touted as the “twin beacons” of Justice. However, apart from balancing critique and utopianism, it also proposes a reform model5 and situation where “jurists and lawyers should not only safeguard the liberty of people but must also nurture their prosperity under the rule of law” (Panganiban, 2006); in other words the idea of “justice and jobs, freedom and food, ethics and economics, democracy and development” comes back to Habermas’ idea of the public sphere as a site of collective judgment and political action. While at the outset it sounds idealistic and undeniably utopian, the liberty and prosperity model is in fact a sound critique of the Philippine constitution and the state of the nation. Hence, it defines a legal course of action, based on existing jurisprudence:
In litigations involving political and civil liberties, the scales of justice should weigh heavily against the government and in favor of the people, pursuant to the doctrine of strict scrutiny. However, in matters affecting the economy of the country and the prosperity of our people, courts – in the absence of grave abuse of discretion and a blatant violation of our Constitution – must defer to the Executive and Legislative branches of government, in accordance with the principle of deferential interpretation of laws and executive issuances” (Panganiban 2006)6
In providing a legal basis for the liberty and prosperity model and, at the same time, a framework for enacting and realizing reforms, Chief Justice Artemio V. Panganiban is paving the way for a better judicial system and way of life for Filipinos. It can even be retooled as a lifelong learning (LLL) model, according to Filipino research analyst Patrick Alcantara in Recasting Liberty and Prosperity in Philippine Lifelong Learning (2013), culling from his LLL dissertation at the University of London Institute of Education.
Rekindling the balance
The liberty and prosperity model, if given a chance to prove and implement its theoretical underpinnings, can even serve its purpose outside the Philippine scenario. The ASEAN Integration7 in progress can similarly adopt this model, for instance, in its vision for 2020. After all, nearly a decade ago, during the Global Forum on Liberty and Prosperity (October 18 – 20, 2006, Makati Shangri-La), the international community well represented by an illustrious delegation, including the chief magistrates of Canada (Hon. Beverly McLachlin, P.C.), British Columbia (Hon. Lance Sidney George Finch), Egypt (Hon. Dr. Adel Omar Sherif, Deputy Chief Justice), France (H.E. Guy Canivet), Guam (Hon. F. Philip Carbullido), Nepal (Hon. Dilip Kumar Paudel), the Russian Federation (Hon. Vyacheslav Lebedev), among others, lauded and supported this “twin beacon” of Justice in the memorable first Joint declaration on Liberty and Prosperity8:
[WE] RE-AFFIRM that adherence to the Rule of Law is a key element in promoting good governance and achieving sustainable economic development; one of the essential facets of such a regime is an independent, competent, efficient and effective Judiciary;
RECOGNIZE that the safeguarding of the liberty of the citizens of the world, and the nurturing their economic well-being require commitment to the Rule of Law;
MINDFUL that while every jurisdiction must operate within the context of its unique legal, cultural and economic systems, the countries of the world are bound together by universally-held values, rights and entitlements which apply to every society;
WE HEREBY DECLARE THAT, the safeguarding of the rights and liberties of citizens, and the promotion of their economic well-being, are inseparable key objectives of the rule of law, that one without the other would be illusory, and that in striking the delicate balance between these twin beacons of justice, liberty and prosperity:
• All sectors of society, both public and private, are encouraged to promote within their spheres of jurisdiction or influence the liberty and prosperity of their citizens, and to ensure a judicial system that remains independent, competent, efficient and effective;
• Judges are enjoined to remain steadfast in their primary role of deciding legal controversies. Towards this objective, they must avoid encroaching on the competence of political and policy agencies of government, but at the same time, assume a dynamic and innovative attitude in evolving their judicial role through judicial education and greater rapprochement with their publics;
• The dynamic changes in the world require continuing international dialogue that promotes the twin beacons of Justice, Liberty and Prosperity and explore the possibility of a Global Foundation for Liberty and Prosperity which shall serve as a forum for the exchange of country experiences, best practices, and visions for the future.” (2006)
It is, perhaps, about time that we revisit what our visionary leaders have already started, and rekindle the twin beacons of liberty and prosperity under the rule of law—one that balances the scales of Justice.
References:
1 Habermas, J. (1989). “The structural transformation of the public sphere”. Translated from: Strukturwandel der Öffentlichkeit: Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft. Frankfurt am Main: Suhrkamp, 1962.
2 Benhabib, S. (1986). Critique, Norm, and Utopia: A Study of the Foundations of Critical Theory. Columbia University Press.
3 Misgeld, D. (1987). Seyla Benhabib, “Critique, Norm and Utopia: A Study of the Foundations of Critical Theory” (Book Review). In: New German Critique, 0094-033X(41), 178-186.
4 Couldry, N. (2013). “Living well with and through media”. In: Couldry, N., Madianou & Pinchevski (eds.) Ethics of Media. Basingstoke, UK: Palgrave Macmillan, 39-56.
5 “Action Program for Judicial Reform (APJR)”. En Banc Resolution Establishing the Program Management Office (PMO) for the Judicial Reform Program, A.M. No. 01-7-09, 17 July 2001. Supreme Court of the Philippines. (Available from: http://apjr.judiciary.gov.ph/cy2012files/reso01709.pdf and
http://www.chanrobles.com/scresolutions/resolutions/2001/july/01_7_09.php)
6 Panganiban, A. (2006). Safeguarding the Liberty and Nurturing the Prosperity of the Peoples of the World. Philippine Law Journal (82), 178-193.
7 Association of Southeast Asian Nations. ASEAN Vision 2020.
8 Global Forum on Liberty and Prosperity. Joint Declaration on Liberty and Prosperity, 20 October 2006. (Available from: http://jrn21.judiciary.gov.ph/forum_gflp/GFLP_Joint_Declaration.pdf)
ABOUT THE CONTRIBUTOR
Kristian Jeff Agustin specialises in visual art, communication, culture, and media studies. In the University of the Philippines-Diliman, he spent 4 years as a Political Science (BA) major before shifting to Interdisciplinary Art Studies (BA), and obtaining his Bachelor’s degree in 2006. In 2012, he accomplished his Master of Arts degree (major in Visual Culture) at the University of Westminster, London, where he gained a Distinction for his dissertation on state interventions in nation-building via social media. In addition to receiving a Metrobank Foundation grant in 2014, he was awarded a PhD scholarship in Hong Kong and is now conducting his research on the ASEAN Cultural Economy under a joint program of the Hong Kong Baptist University and the University of Westminster. He holds a civil service professional license, and served in the Supreme Court of the Philippines for nearly 4 years. He likewise served as first Executive Secretary of the Foundation for Liberty and Prosperity.