The FLP: a Backgrounder

The Foundation for Liberty and Prosperity (FLP) aims to perpetuate the core judicial philosophy of Chief Justice Artemio V. Panganiban (Ret.) that jurists and lawyers should not only safeguard the liberty of our people but must also nurture their prosperity under the rule of law. To him, justice and jobs; freedom and food; ethics and economics; democracy and development; nay, liberty and prosperity must always go together; one is useless without the other. The attainment of this dual goal involves an understanding of the intertwining relationship of law and business; and of regulation and entrepreneurship.

The Foundation for Liberty and Prosperity was formally organized as a juridical person when the Securities and Exchange Commission issued its Certificate of Incorporation on October 27, 2011.

Its founding Board of Trustees is composed of Artemio V. Panganiban (retired Chief Justice) Elenita C. Panganiban (former Associate Dean of the Asian Institute of Management), Hilario G. Davide Jr. (retired Chief Justice ), Washington Z. Sycip (founder of the Asian Institute of Management and Sycip Gorres Velayo and Company), Edilberto C. De Jesus (former Philippine Secretary of Education and President of the Asian Institute of Management), Jennifer J. Manalili (Commissioner at the Professional Regulation Commission of the Philippines), Maria Elena P. Yaptangco (President and Chief Executive of The Baron Travel Corporation), Maria Theresa P. Mañalac (Professor at the Asian Institute of Management), and Joel Emerson J. Gregorio (FLP’s Corporate Secretary).

Elected as its first batch of officers were Artemio V. Panganiban, Chairman of the Board, Maria Elena P. Yaptangco, President; Evelyn T. Dumdum, Executive Vice President; Elenita C. Panganiban, Treasurer; and Joel Emerson J. Gregorio, Corporate Secretary. Elected chair of the various standing committees were Artemio V. Panganiban (Executive Committee), Washington Z. Sycip (Finance), Hilario G. Davide Jr. (Governance), and Edilberto C. De Jesus (Education).

Mr. Chief Justice Panganiban formally and publicly launched the Foundation during his 75th Birthday Celebrations during which an original musical concert titled “Ageless Passion” was staged at the Meralco Theater in Pasig City on December 20, 2011, featuring six original musical compositions (plus an overture) of maestro Ryan Cayabyab and Kristian Jeff Agustin. During his address, he said FLP aims to perpetuate his core judicial philosophy that jurists and lawyers should not only safeguard the liberty of our people but must also nurture their prosperity under the rule of law. To him, justice and jobs; freedom and food; ethics and economics; democracy and development; liberty and prosperity must always go together; one is useless without the other. The attainment of this dual goal involves an understanding of the interlocking relationship of law and business, and of regulation and entrepreneurship.

Mr. Chief Justice Panganiban believes that in litigations involving the civil liberty of our people, the scales of justice should weigh heavily against the government and in favor of the people, pursuant to the doctrine of strict scrutiny. But in matters affecting the economy of the country and the prosperity of our people, courts – in the absence of grave abuse of discretion – must defer to the Executive and Legislative Branches of government, in accordance with the principle of deferential interpretation of laws and executive issuances. The responsibility for promoting and developing the country’s economy rests primarily on its political leaders. Should they fail in this duty, our people can replace them during periodic elections.

He also believes in private enterprise as the engine of economic growth. Thus, government must promote entrepreneurship and encourage private capital. At the same time, the government has the duty of overseeing the fair and equitable distribution of private wealth to all our people, especially the poor and marginalized. The government, likewise, has the responsibility of enlarging the areas of economic growth for the benefit of future generations of Filipinos. Thus, the economic pie must not only be fairly divided but must also be enlarged so that more benefits could be spread to more people under the social justice principle of giving more law to those who have less in life.

Accordingly, to achieve its goals, the Foundation shall organize, undertake and/or support the following projects and activities: (1) legal assistance, legal research and legal aid; (2) seminars, workshops, trainings, classes, debates, moot courts, oratorical jousts, and other forms of instruction; (3) professorial chairs, educational scholarships and fellowships; (4) curricula on liberty and prosperity under the rule of law; and (5) a Center for Liberty and Prosperity.

As first major project, the Foundation is sponsoring 10 Professorial Chairs in nine of the leading law schools in the country and one in the Philippine Judicial Academy. Called the Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity, the program immediately merited co-sponsorships from the Metrobank Foundation and the Metro Pacific Investments Corporation.

The first recipients are Dean Sedfrey Candelaria (Ateneo de Manila Law School), Dean Danilo Concepcion (UP College of Law), Dean Andres Bautista (FEU Institute of Law), Dean Jose Manuel Diokno (De La Salle University College of Law), Dean Nilo Divina (UST Faculty of Civil Law), and Chancellor Adolfo Azcuna (Philippine Judicial Academy), Justice Eduardo Antonio Nachura (Arellano University), Dean Joan Largo (University of San Carlos), Dean Reynaldo Agranzamendez (University of the Cordilleras), and Dean Mikhail Lee Maxino (Silliman University).

The Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity was formally launched on September 18, 2012 at the Metrobank Auditorium, Metrobank Plaza, Sen. Gil Puyat Avenue, Makati City with Chief Justice Maria Lourdes P. A. Sereno as Guest of Honor and Speaker.

Forums in San Carlos and San Beda

First published by the Philippine Daily Inquirer / 05:08 AM October 21, 2018

Last Wednesday, I spoke in two legal forums. The first was at the top-notch School of Law and Governance of the University of San Carlos in Cebu, where I seconded Dean Joan S. Largo’s pivotal lecture on how our economic rights trumpeted by the 1987 Constitution can be enforced by the judiciary.

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Having just returned from a “learning visit on clinical education” in the United States, the young and energetic dean, one of the 13 holders of the “Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity,” began with a contrast of “how the poor, in a country of the rich, grappled with the notion of justice. One thing is certain, the road to justice is paved by the access to justice of the powerless.”

She then compared this situation with another glaring contrast, this time in our country: Despite the repeated invocations by its framers that our 1987 Charter is “pro-poor,” that social justice is the “heart of this Constitution,” and that “[t]alk of people’s freedom and legal equality would be empty as long as they continue to live in destitution and misery,” our economic rights have remained mere grandiose rhetoric to this day.

More than three decades after the Constitution took effect, our people still wallow in grinding poverty. This sad reality is caused in part by the failure of Congress to pass enabling legislation to substantiate and fulfill these benevolent invocations.

The solution lies in urging our Supreme Court to be as “bold and daring” as the highest courts in South Africa, Colombia and Argentina “in enforcing economic rights not only in the laws but also in judicial edicts” like the writ of prosperity.

After all, “[n]owhere can we find a constitution so humane, and a court so powerful than in the Philippines, making a writ of prosperity truly feasible if the Philippine judiciary wants it.”

To claims that the reticence in enforcing economic rights is due to the utter lack of resources, Largo gamely retorted, “Indeed, it is in countries with the scarcest of resources that the writ of prosperity lends itself to greatest relevance and importance… When a court issues the writ… it does no more than prod the elected branches… to comply with the legal standards and mandates embodied in the Constitution.”

Readers may access Largo’s lecture in full at http://www.libpros.com.

On my part as chair of the Foundation for Liberty and Prosperity, I asked Dean Largo to seek the help of her colleagues in the Philippine Association of Law Schools (PALS), which she heads, to use the “rights-conferring declarations” of the Constitution to determine which of the many economic rights can be the subject of judicial enforcement sans legislation.

I also urged her and her PALS colleagues to use the rule of law to unleash the entrepreneurial ingenuity of our people. What our nation needs is a government that affords opportunities for education instead of habitual mendicancy, fosters free competition instead of suffocating regulations, and rewards talent and hard work instead of sycophancy and connection. My talk can be accessed at the same website.

Hosted by the San Beda Law Alumni Association, the second forum was a testimonial dinner for recently promoted Bedans, including Supreme Court Justices Jose C. Reyes Jr. and Ramon Paul L. Hernando, Ombudsman Samuel R. Martires, Sandiganbayan Justices Maryann C. Manalac and Kevin Narce B. Vivero, Securities and Exchange Commission Chair Emilio B. Aquino, Deputy Commissioner Arnel S. Guballa of the Bureau of Internal Revenue and several others.

My extemporaneous message was simple: Bedans reached their lofty offices with the expectation that they will outperform the graduates of another university who, in the past, cornered most of these exalted posts. While there may be bad eggs in the San Beda basket, the vast majority are good and selfless.

I challenged them to prove by their deeds, more than by their words, that their immersion in “Ora et Labora” will result in prudent and graft-free governance. And, yes, amid their roars and cheers, I reminded them that their fellow Red Lions and harshest critics, Sen. Leila de Lima and former Sen. Rene A. V. Saguisag, are ready to pounce on their lapses and missteps.

Way to a Happy, Free and Prosperous Society

Remarks delivered by Retired Chief Justice ARTEMIO V. PANGANIBAN in response to the lecture delivered by Joan S. Largo, Dean of the University of San Carlos School of Law and Governance and President of the Philippine Association of Law Schools on October 17, 2018 at the Buttenbruch Hall of the University of San Carlos, Cebu City.

 

Let me begin by saying how amazed I am that just a few days after Dean Joan S. Largo arrived from, to quote her, “a learning visit on clinical education” in the United States, she was ready with a scholarly and authoritative lecture, backed by a PowerPoint, that she just delivered so eloquently before this appreciative audience of the best and brightest legal minds in Cebu.

I thank her and her colleagues in the Philippine Association of Law Schools (PALS), which she now heads, for their support of my philosophy of liberty and prosperity under the rule of law and of my advocacy for a writ of prosperity. With such display of unity in the academe, I believe, in time, we can successfully craft well-vetted “Rules of the Writ of Prosperity” that we can propose for the promulgation of our Supreme Court.

In her lecture, Dean Largo focused on the constitutional provisions on social justice and human rights which the government, particularly the political branches, have not been able to implement and enforce. She emphasized, and rightly so, on the need to arm the least, the last and the lost: the dirt poor, the marginalized and the powerless with a way to compel our government to uplift their plight. She cited the efforts of the highest courts of other countries, like South Africa, Argentina and Columbia, in using their authority to help alleviate the poor’s angst, pain and suffering.

Simple but profound truth

In my response to Dean Largo, let me also cite other countries to drive to home an analogous point, this time no longer a plea for direct assistance or dole-outs in terms of “conditional transfers” of cash, or cheap rice, or communal housing, or socialized medicine.

Taking off from a speech I delivered before the Asean Law Association a few years ago, let me begin with a famous quotation of Dr. Martin Luther King Jr., “If a man does not have a job or an income, he has neither life nor liberty nor the possibility for the pursuit of happiness.” Let me repeat that, “If a man does not have a job or an income, he has neither life nor liberty nor the possibility for the pursuit of happiness.”

It may seem ironic that I should be citing an American civil rights icon in this august audience of patriotic Filipinos, but like Dean Largo who cited foreign jurisprudence to buttress her cause, I did so not because of Dr. King’s nationality, color, gender or religion. I quoted him because of the truth he said so simply yet so profoundly.

I cited him because precisely of my belief that truth is eternal and limitless; that truth is not bound by sovereignty, or territory, or ideology, or legality; that what is true in America is also true in the Philippines, in Africa, in South America and in the world. And that that truth is this: humans need both justice and jobs; freedom and food; ethics and economics; peace and development; liberty and prosperity; these twin beacons must always go together; one is useless without the other.

Now, even in retirement, I still continue my advocacy for these twin beacons of liberty and prosperity. Thus in 2011, five years after my retirement from the judiciary, when I celebrated my 75th birthday, I organized the Foundation for Liberty and Prosperity, which now sponsors several educational programs, namely, 13 professorial chairs in various law schools, 20 full law scholarships at P200,000 each, in which some USC students are recipients, and a dissertation contest, in which a USC student, Tess Marie Tan, won the second place, second only to Raphael Pangalangan, a Filipino graduate student of the University of Oxford in Great Britain, who copped the first place.

To repeat, there are certain truths that transcend sovereignties, territories, ideologies and legalities. And one of those truths is this: The best way to conquer poverty, to create wealth and to share prosperity is to unleash the entrepreneurial genius of people by granting them the freedom and the tools to help themselves and society.

Saving the fisherman    

Let me push my thesis further by quoting a popular adage from Confucius, “Give a man a fish and you feed him for a day. Teach him to fish and you feed him for a lifetime.” Indeed, to save a fisherman from destitution, we must help him learn how to fish more effectively. We must educate him in the skills needed to catch fish more efficiently, assist him in acquiring a boat, allow him the freedom to sail the vast oceans, and teach him the techniques to market the fish he catches.

Sometimes, some of us fear that the fisherman may get lost and die in the storms that batter the seas; or that he may become selfish and would want to own the entire ocean and its vast resources; or that he may become too rich and powerful and metamorphose into a rival, an enemy, or worse, a master. Such fears of possible misjudgments may indeed happen some of the time. Human arrogance, greed and avarice lurk in all undertakings. But they are the exceptions rather than the rule. We must never stop dreaming for fear that reality may shatter our dreams. We must admit that risks and challenges form part of the interesting reality of being human.

On the other hand, I respectfully believe that the goal of governance and of law is to provide guarantees and incentives to help the fisherman prosper, to create the institutions to support him, and to promulgate minimal regulations to prevent him from appropriating all the fishing grounds, from keeping all the earnings to himself and from forgetting his obligation to pay reasonable taxes to the government. Indeed, government must inspire him to share his consequential wealth with the rest of society.

Validating the truth

Let me take you briefly around the world to validate this simple truth. The United States, the most powerful country in the world and the great promoter of liberal democracy, attained affluence because of the pioneers who defied monarchical tyrannies and started a new nation that unleashed the inventive, innovative and entrepreneurial spirit of people like Thomas Edison, Nikola Tesla, Cornelius Vanderbilt, John Rockefeller, Andrew Carnegie, Henry Ford, J.P. Morgan, and lately of Bill Gates and Steve Jobs, as well of great government leaders like Franklin Delano Roosevelt, Dwight Eisenhower and Barack Obama who provided them with the encouragement to attain their dreams and the good governance to contain their greed and share their wealth.

Then, let us go to China, the second most powerful economy in the world and the prime promoter of the communist system. True, Mao Zedong led the masses in a revolt that dislodged the corrupt and inefficient government born of an outdated monarchy. But it was Deng Xiaoping who led this nation to unparalleled economic prosperity by unleashing the entrepreneurial ingenuity of the Chinese under his “One-Country-Two-Systems” philosophy.

Finally, let me bring you to Korea. As a result of World War II, this country was divided into North and South, which unfortunately could not accept their division and engaged in a terrible war that ruined their economies and impoverished their people. Rising from the ruins, South Korea relied on the entrepreneurial spirit of the Korean people and built on their private initiative as well as on the notion that innovation, creativity, freedom and hard work would enable them to conquer their poverty, provide for their family’s well-being and attain affluence.

In contrast, North Korea – despite its technological and military bravado – wallows in abject poverty as a result of its tight grip on creativity and inordinate fear of the entrepreneurship, education, freedom and prosperity of its people.

Entrepreneurship in the Philippines

I believe that given the same climate of free enterprise, our people can rise to the challenges of innovation, creativity and ingenuity and free themselves of extreme poverty, disease, malnutrition and disability. All they need is a government that affords opportunities for education instead of habitual mendicancy, fosters free competition instead of suffocating regulations, and rewards talent and hard work instead of sycophancy and connection.

The best proofs of this assertion are our overseas Filipino workers. Our engineers, technicians and house helps are treasured in Europe and the Middle East. Our professionals, doctors and nurses, succeed much better than many natives in the United States, Canada and Australia. In fact, the average Filipino professionals earn more than the average Caucasians in those countries. Moreover, they are law-abiding, they observe strict traffic rules simply because these rules are enforced evenly and fairly.

Yes, I conclude this response to Dean Largo with the firm belief that if our Filipino brethren are accord liberty, prosperity and the rule of law, they will use their entrepreneurial ingenuity to uplift themselves from destitution, disease and disability. Our responsibility – as leaders of the academe and the legal profession – is how we can harness the rule of law to enable them to form and enjoy a happy, free and prosperous society.

Maraming salamat po.

#FLP #Awards #Opportunities

School Year 2018-2019

DISSERTATION WRITING CONTEST

Entries for the first round must be submitted on or before 5 pm on January 31, 2019. Download the entry form and guidelines now (click here).

SCHOLARSHIP PROGRAM

The deadline for the submission of applications for  S.Y. 2018-2019 is on September 16, 2018, 5 pm. Download the application form now (click here).

Wanted Writ of Prosperity

* Transcript of the extemporaneous Closing Remarks delivered by retired Chief Justice ARTEMIO V. PANGANIBAN after the Public Lecture of Polytechnic University of the Philippines Law Dean Gemy Lito L. Festin held on May 12, 2018 at the Bulwagang Bonifacio, A. Mabini Campus, PUP, Anonas Street, Sta. Mesa, Manila.

 

I have three points to share tonight. First, let me congratulate Dean Gemy Lito L. Festin, our featured chair holder of the Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity, for his innovative and well-researched piece titled “Tutelary Rules Principle as Legal Tool for Easing Economic Rights’ Access to Justice in the Philippines.” I think it is one of best lectures I have heard since the Foundation for Liberty and Prosperity (FLP), in cooperation with the Metrobank Foundation (MBF), started this Lecture Series.

Appreciation and Honorarium      

To show our appreciation more concretely and beyond mere words, may I hand over to Dean Festin his honorarium for P100,000, via this check for P90,000; the balance of P10,000 constitute the withholding tax which will be remitted directly to the Bureau of Internal Revenue in accordance with law, and which remittance the good Dean may use when he files and pays for his income tax returns early next year.

So too, may I advise you that Dean Festin’s piece will find a prominent place in the Coffee Table Book that FLP and MBF will be publishing soon to feature our outstanding professorial lectures. This is not an ordinary book. It will be a big multicolored tome that everyone concerned would be happy to place in their living rooms, not just in their libraries.

I also felicitate the three “reactors,” (in the order they spoke) Atty. Rosalie J. De la Cruz-Cada (Deputy Director for Projects of the IBP Center for Legal Aid), Judge Joselito C. Villarosa (of Branch 66, Regional Trial Court of Makati), and Atty. Arnold C. Bayobay (Graft Prosecutor of the Office of the Ombudsman) for their interesting feedbacks and questions. My admiration too goes to Companero Carlos S. Cao Jr., former Labor Undersecretary and POEA Administrator, for being an insightful and funny Master of Ceremonies.

Truth to tell, this is my first time to hear of the word “Tutelary.” Indeed one is never too old to learn. I may be a retired chief justice now at 81 years, but I think I am not “retarded.” One is never too old to learn new treats.

Political vs Economic Rights 

We have always known in law school that most of our economic rights, even those defined in our Constitution, are not self-executing in nature and cannot, by themselves, be the subject of justiciable controversies. To be enforceable, they need enabling legislation. In several decisions, our Supreme Court – citing the deliberations of the Constitutional Commission – has held that economic and social rights cannot, by themselves, be enforced by the judiciary.

This line of decisions finds support in constitutional history, starting from the United States where we adopted our own Constitution. Remember that the more than two-century-old US Constitution was crafted during the American struggle for freedom and independence from British colonial rule when political and civil liberties were the battle cry. And so it is with us. All our basic laws, starting from the Malolos Constitution to the present 1987 Charter, were also drafted at a time when our people fought for political and civil freedom from foreign conquerors, Spanish and American. This is reflected most specially in the Bill of Rights which centered on political and civil rights.

In the present age, while we still treasure our political and civil liberties, our people’s focus is more on their economic needs and wants. This is clear in many recent credible polls and surveys showing that the most urgent concerns of our people relate to poverty, jobs and high prices. They long for liberation from the bondage of poverty. Of what use indeed is the freedom to travel if we cannot fill our stomachs? Of what use is the freedom of information, if we cannot quench our thirst for potable water?

This is why – since I was a student mired in destitution to my professional life as a lawyer and later as I jurist – I have always advocated for justice and jobs, freedom and food, ethics and economics, nay, liberty and prosperity; one is useless without the other. My major decisions starting from Tanada vs. Angara in 1997 have espoused this doctrine. That is why even in retirement, I organized the Foundation for Liberty and Prosperity as a way of celebrating my 75th birthday in 2011.

Writ of Prosperity

In his lecture, Dean Festin ably tackled this jurisprudential difficulty of enforcing economic rights. But he has moved further by proposing a solution – by referring to the “Tutelary Rules” which the Columbian Supreme Court has drawn precisely to enforce economic rights.

I will no longer repeat his many cogent arguments why we must encourage our Supreme Court to follow the Columbian example and promulgate new Rules of Procedure – a power our Constitution has endowed on the Court – to authorize the enforcement of economic rights. But may I add that one good way of doing that is to create the Writ of Prosperity, in the same manner that our Court has promulgated the Writ of Amparo, the Writ of Habeas Data and the Writ of Kalikasan.

The last Writ was issued to provide a legal way to enforce the right to ecology which is arguably an economic right that does not normally find the same traditional constitutional treatment as the self-executing political and civil rights.

May I suggest that Dean Festin take the initiative of bringing this matter to the Philippine Association of Law Schools to the help of his colleagues there in molding this idea and preparing the detailed Rules of Procedure for this new Writ of Prosperity. I am sure PALS President Sedfrey Candelaria of Ateneo would be sympathetic to this proposal.

I am sure also that both the FLP and the Metrobank Foundation will support this endeavor to give birth to the Writ of Prosperity.

May I also suggest that concurrently with the effort to convince the Supreme Court to institute the new Writ, we make a similar endeavor to amend the Constitution to include the right to prosperity and the corollary right against poverty? This would be timely because of the current national effort to amend the Constitution. Again, both the FLP and the MBF, and I personally, would be happy to support this worthwhile venture.

Polytechnic University of the Philippines

The second topic of my closing remarks would be about PUP. I must confess that this is my first time to visit your school. But I do know about it since it was the old Philippine College of Commerce founded in 1901 up to its transformation into a university by a group of avant garde educators led by my activist friend, the late Dr. Nemesio Prudente. PUP is also kind of nostalgic for me, because I located my first law office here in Sta. Mesa, at the Ramon Magsaysay Boulevard very near the vehicular bridge crossing the railroad, less than one kilometer away. Back then, I was intending to run for Congress in this congressional district that includes the University Belt, until the idea was vetoed by my dear wife who did not want any partisan political post for me, or for our children.

To be sure, I am sentimentally attached to PUP, because it was, and still is, the hotbed of activism. Activist student leaders are close to my heart because as you may know, I organized the National Union of Students of the Philippines more than fifty years ago, which was, and still is, the largest student organization in the country. Incidentally, at that time, the Catholic colleges like Ateneo, La Salle, St. Theresa and St. Scholastica did not participate in non-Catholic student organizations. But the NUSP crossed the cloisters and got the collegialas into the mainstream student movements. This historic turn was a bonus for me — it was because of the NUSP that I met the gentle Scholastican, Elenita Carpio, who later became my wife.

I am thus happy that PUP chose to be an active participant in FLP’s programs. Aside from the professorial chair that FLP awarded to Dean Festin, it also awarded full scholarships, including tuition, books and monthly stipends, to three FLP law students, Jun Dexter Rojas, Ma. Vida Malaya Villarico and Rexlyn Anne Evora. They won three of the 21 scholarships awarded for this school year, with only Ateneo de Manila surpassing the count with four. Ms Evora was also chosen as one of the six finalists in the FLP Dissertation Writing Contest.

May I also announce right now that additional cash prizes await them should they graduate with Latin honors? FLP will also award P100,000 to each FLP scholar or dissertation writing contest winner/finalist who make it to the Top Ten in the coming Bar Exam, and double that, or P200,000, for the numero uno.

I have no doubt that PUP graduates are capable of achieving this feat. After all, your bar exam track record is enviable. Your first batch of graduates in 2016 had a 100 percent passing record, while your 2017 grads had an 88.88 passing rate. It is time for you to top Bar Exam this year. I will be there in 2019 to celebrate and hand out FLP’s checks for the Top Ten achievers among our scholars or dissertation winners/finalists.

Why I Am Who I Am

Now, for the third and final topic of my closing remarks. I was very touched by the Invocation that started our program. I was reminded of my speech titled “Why I Am Who I Am Now” delivered in 2007 when I was the guest speaker to celebrate the 200th anniversary of the Canossian Sisters (the speech can be accessed in my personal website, cjpanganiban.com).

By way of backgrounder, like many of you in the audience, and yes, like many of PUP students in general, I belonged to a very poor family when I was young. My father finished only high school and was a government clerk. My mother did not finish elementary school. My father supported not only his four children, of whom I was the youngest, but also his seven siblings who were all younger than him, because his own father passed away even before I was born. As the youngest in our impoverished family, nothing was left for me. I had to sell newspapers, peddle cigarettes amongst jeepney passengers, and shined shoes to support myself. In college, I had to maintain my scholarship and sell textbooks to my classmates to be able to own one as my commission.

I studied in public schools, at Juan Luna Elementary School and Mapa High School. I wanted to enroll at the University of the Philippines for college where I was granted a tuition scholarship as an honor graduate of our high school batch of 1,200. But my impoverished father could not afford the then 15-centavo bus fare from our small rented “entresuelo” in Cataluna Street, Sampaloc, Manila to the UP Diliman Campus. He advised me to enroll instead at the then nearby University of Santo Tomas or Far Eastern University.

At UST, I was interviewed by an old Dominican priest. “So, you want a college scholarship. Since you come from a non-Catholic high school, I will ask you three questions. If you can answer them, I will grant you a scholarship. First, how many Gods are there?” “One,” I readily replied.

“How many persons in one God?” he followed up. “Three,” I gamely answered. Then came the final question, “Name them.” Believe it or not, ladies and gentlemen, I did not know the answer, so I muttered, “Susmariosep!” “Wrong,” he boomed with finality, ending my hope of entering the oldest university in the country. At FEU, I was granted a scholarship without any question, but I had to maintain it with high grades throughout my stay.

That incident I considered as a challenge for me to learn more of my faith. At FEU, I met the chaplain, the late Fr. Michael Nolan, who recruited me to the Student Catholic Action. After college, I continued my Catholic learning, attending many seminars and reading the Holy Bible back to back a few times, plus tens of volumes of commentaries on Catholicism. I embraced the Lord Jesus as my savior and master.

In 1991, I was invited to be a lay member of the Second Plenary Council of the Philippines, where I (together with about 50 Catholic lay leaders) met and dialogued with all the Catholic bishops and leading priests here in forging new regulations to implement the reforms of Vatican II in the Philippines.

My ascent to Catholic leadership was capped by my appointment by the late Pope John Paul II as the only Filipino lay member in 1996-2002 of the Pontifical Council for the Laity based in the Vatican City. This 30-member Council is the highest advisory “dicastery” advising the Pope “on all matters regarding the life of the Catholic faithful worldwide.”

So, from being a Catholic ignoramus who did not know the three persons of the Holy Trinity, I graduated to the highest lay advisory council of the Pope in the Vatican. I relate this story to inspire you, my young friends in the audience, that we should take disappointments and defeats as opportunities and challenges to achieve victory later in life. Poverty and ignorance are not barriers to success. They can be overcome. Looking back, maybe if I were not as poor and as ignorant as I was, I would not have struggled and worked as hard as I did to become “why I am who I am today.”

Maraming salamat po and magandang gabi po sa inyong lahat.

The FLP Awards 21 Law Scholarships and Declares Winners in Dissertation Contest

PRESS RELEASE

 

The Foundation for Liberty and Prosperity awarded recently the winners and finalists of its 2017-2018 Dissertation Writing Contest and 21 scholars under its 2017-2018 Legal Scholarship Program at the Ateneo Professional Schools Auditorium in Rockwell Center, Makati City.

As Guest of Honor and Speaker, Acting Chief Justice Antonio T. Carpio commended all the awardees as “future legal warriors of the Philippines who will defend our national territory and maritime zones, not in the mountains, skies or high seas, but in the courtrooms at The Hague and Hamburg.”

(Full text of his message titled “A Culture of Respect for, and Understanding of, International Law can be downloaded here).

The awards to the dissertation winners and finalists were presented by Retired Chief Justice Artemio V. Panganiban, Senior Justice Presbitero J. Velasco, Jr. (the chairperson of the Board of Judges), and Atty. Solomon M. Hermosura, Managing Director and General Counsel of Ayala Corporation, which donated the cash prizes.

Raphael Lorenzo A. Pangalangan, a graduate student of the Oxford University and the University of the Philippines, was awarded first prize—with a plaque of recognition and P320,000 cash. Tess Marie Tan, a senior law student of the University of San Carlos in Cebu City, received a plaque of recognition and P220,000 cash for placing second.

The two bested four other finalists: Rexlyn Anne M. Evora (Polytechnic University of the Philippines), Helen May M. Frias (Far Eastern University), Janine Faye A. Napoles (Centro Escolar University), and Joben Mariz T. Odulio (Ateneo de Manila University), who each received P20,000 and a certificate of recognition.

In his acceptance speech on behalf of his fellow winners, Pangalangan thanked the Foundation “for the opportunity to let our voices be heard.” He noted that at “a time where political whim has permeated every sphere of human undertaking, …, the Foundation reminds us that merit still counts for something” and that it “is the challenge to … the lawyers and the lawyers to be, to keep it that way.”

(Pangalangan’s acceptance speech titled “Liberty and Prosperity: In Doctrine, In Practice” can be accessed here).

Each of the 21 scholarship recipients for the school year 2017-2018 received certificates of recognition together with P200,000 cash—divided into P100,000 maximum for tuition, P20,000 for books, and P80,000 for monthly stipends.

Retired Chief Justice Artemio V. Panganiban, Acting Chief Justice Antonio T. Carpio, and Ms. Elizabeth T. Alba of the Tan Yan Kee Foundation, which donated the cash prizes, officiated the awarding of the scholars.

Of the 21 scholarships, ten (10) were awarded to 3rd year law students as follows: Leo Francis Abot (Ateneo de Manila), John Anthony Almerino (University of San Carlos), Arvin Paolo Cortez (Ateneo de Manila), Mikael Gabrielle Ilao (University of the Cordilleras), Kenneth Glenn Manuel (UST), King Anthony Perez (University of Cebu), Josiah David Quising (FEU), Jun Dexter Rojas (PUP), Julienne Therese Salvacion (San Beda – Manila) and Ma. Vida Malaya Villarico (PUP).

Eleven (11) were awarded to 4th year law students, namely: Karina Mae Badua (UST), Sean James Borja (Ateneo de Manila), Kaycelle Ann Castillo (FEU), Ervin Fredrick Dy (UP), Rexlyn Anne Evora (PUP), Katrina Monica Gaw (Ateneo de Manila), Nigel Carmelo Reago (De La Salle University), Jose Angelo Tiglao (De La Salle University), Summerson Macasarte (St. Thomas More), Althea Vergara (University of San Carlos), and Vanessa Gloria Vergara (Ateneo de Manila).

Tiglao delivered his acceptance speech on behalf of his fellow FLP scholars. He said he was honored to be called an FLP scholar “not because of our social status, but because of our scholastic record and our extra-curricular commitments, which together, show our holistic growth as students of the law and future members of the legal profession” and their “resolve, conviction, and firmness to stand” for what they believe in.

He thanked CJ Panganiban “for allowing us to tell our stories and for inspiring us with his own, for his life work has constantly served as a reminder to us that our first duty as a student is to be an excellent one for we have an obligation not to waste this opportunity.”

And that more than just being excellent students, they “must never forget that we have a duty to give back to this country what we have learned through this scholarship program, as members of our society, because now, more than ever, we must serve as beacons of light for those who struggle to escape the dark.”

(Download a PDF copy of his full speech here.)

CJ Panganiban closed the program with his message titled “Hail to the New FLP Scholars and Winners.” He called on all the scholars and winners “to be models, now and later in their professional careers, of the FLP’s advocacy that we all need both justice and jobs, freedom and food, ethics and economics, peace and development, liberty and prosperity; that these twin beacons must always go together for one is useless without the other; and that the best way to conquer poverty, to create wealth and to share prosperity is to unleash the entrepreneurial genius of our people by granting them the freedom and the tools to help themselves and society.” His speech is also accessible via his personal website, http://www.cjpanganiban.com.

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The FLP Dissertation Contest aims to augment existing literature on the Foundation’s core philosophy of liberty and prosperity under the rule of law. The contest is open to third year and fourth year law students and those taking Master of Laws. The Dissertation Contest is sponsored by FLP with a financial grant from the Ayala Corporation, and co-sponsored by the Philippine Association of Law Schools (PALS).

On the other hand, the FLP Legal Scholarship Program is merit-based and aims to look for the best and the brightest third and fourth year law students in the schools that obtained a percentage of passing above the overall average percentage of passing in bar exams based on the statistical data from the Supreme Court. It is sponsored by FLP with a financial grant from theTan Yan Kee Foundation (TYKF) and co-sponsored by the Philippine Association of Law Schools (PALS).

The FLP was founded in 2011 to perpetuate the core judicial philosophy of CJ Panganiban — that jurists and lawyers should safeguard liberty and nurture prosperity under the rule of law. Its Board of Trustees is composed of CJ Panganiban (chairman), Sec. de Jesus, retired Supreme Court Justice Angelina Sandoval-Gutierrez, Evelyn T. Dumdum, Asian Development Bank Consultant Joel Emerson J. Gregorio, Atty. Jennifer J. Manalili, Prof. Elenita C. Panganiban and Maria Elena P.S. Yaptangco (members).

Ayala is the country’s long standing partner in the pursuit for progress and nation building, developing businesses that transform industries, challenging the status quo, and bringing innovations in the Philippines and abroad that contribute to the nation’s social and economic agenda. For details, please visit  www.ayala.com.ph.

The Tan Yan Kee Foundation is the corporate social responsibility arm of the Lucio Tan Group of Companies. It approaches corporate social responsibility from a holistic commitment framework targeting education; culture and sports; health and social welfare including environmental concerns; research; and manpower development. For details, please visit www.tanyankee.org.
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 .                              In cooperation with

Equality of rights to liberty and prosperity

First published by the Philippine Daily Inquirer / 05:12 AM April 01, 2018

As a way of commemorating Christian resurrection and liberation from earthly afflictions today, Easter Sunday, let me turn to the award-winning treatise of Raphael Lorenzo Pangalangan pleading for equal legal treatment of the rights to prosperity with those of liberty.

Scholarly treatise. Written in elegant, authoritative and scholarly legalese, the 47-page treatise, fortified by 248 footnotes, won the first place (P300,000 cash plus a plaque of recognition) in the first “Dissertation Writing Contest” sponsored by the Foundation for Liberty and Prosperity (FLP), with funding from Ayala Corp. and the cooperation of the Philippine Association of Law Schools. It may be accessed at www.libpros.com but I will try to simplify it.

To begin with, FLP champions the philosophy of liberty and prosperity under the rule of law. It believes that these twin beacons must always go together; one is useless without the other. They must be equally cherished and protected as essentials of life and wellbeing. Indeed, the choice is no longer “Give me liberty or give me death”; it is enjoying both liberty and life in equal measure.

Pangalangan observed, however, that traditional legal concepts prioritize liberty over prosperity. While fundamental liberties are recognized as self-executing rights enforceable by judicial action without need of further legislation, prosperity is appreciated merely as an aspiration rather than as a right; it requires congressional acts before it could find sanctuary in the courts.

He wrote, “The intent of the drafters of the 1987 Constitution is clear: social and economic rights — as embodied in the Declaration of Principles and State Policies, as well as in the Social Justice provisions of the basic law — are not one of the traditional rights like those enshrined in the Bill of Rights, and are mere commands to the state” needing action by Congress.

Dichotomy of rights. Consequently, our Supreme Court (echoing that of the United States) adheres to the “state action doctrine” which generally reserves the application of the Bill of Rights to the public, but not to the private, sphere. Only the state — to the exclusion of private entities and individuals — is obligated to observe and can be held liable for violating basic rights.

This dichotomy is justified by the traditional theory that civil and political liberties (like freedom from fear, freedom of speech, of assembly, of religion, and freedom to participate in elections and in the formation of public opinion), are characterized as natural rights while social and economic rights — the anchors of prosperity — (like freedom from want, from afflictions, and the free pursuit of economic activities, competition and vocations), have been shunned as mere inventions requiring affirmative state action.

The former are deemed “first generation rights” while the latter, “second generation rights,” are mere inventions of political will rather than essentials sourced from our very humanity.

Equality of rights. However, citing a formidable bibliography of cases both here and abroad, authoritative publications, journal articles and lectures, and over 20 international covenants, including seven core human rights treaties that the Philippines ratified and constitutionally adopted as part of the law of the land, Pangalangan passionately posits that prosperity rights, like civil and political rights, should now be deemed self-executing rights enforceable by the courts without need of enabling legislation.

Moreover, repeatedly quoting from Tañada vs Angara (May 2, 1997) and my separate opinion in Serrano vs NLRC (Jan. 27, 2000), he vigorously argues that with the “advent of liberalization, deregulation and privatization … even private individuals [are] sources of abuses and threats to human rights and liberties.” Thus, they should be accountable in the observance of rights to liberty and prosperity.

He concludes: “Liberty and prosperity forward common sense in the pursuit of uncommon justice. [They recognize] how civil and political rights are tightly intertwined with social and economic relations — how freedom from fear necessitates freedom from want.”

Liabilities of internet intermediaries

First published by the Philippine Daily Inquirer / 05:06 AM March 25, 2018

During the last hearing conducted by the Senate committee on public information chaired by Sen. Grace Poe, the liability for fake news of internet intermediaries was taken up.

Active and passive. The discussion reminded me of the treatise of Tess Marie P. Tan, which was adjudged second place (and won P200,000 and a plaque of recognition) in the recent “Dissertation Writing Contest” sponsored by the Foundation for Liberty and Prosperity (FLP) with funding from Ayala Corp. and the cooperation of the Philippine Association of Law Schools.

Relevantly, Tan asked: Are active internet intermediaries (which have editorial control over their content, like online news outlets — think Inquirer.net) liable for libel and damages for what are published on their sites? More crucially, are they equally liable for uploaded comments and photos of their readers?

What about the passive internet intermediaries (which do not exercise editorial control over their published content, like YouTube, Facebook, Twitter, Instagram, Google and Yahoo!)? Are they criminally and civilly liable for what their customers or users upload on their sites?

Specifically, if a user publishes content that infringes on a third person’s intellectual property, should a passive intermediary like Yahoo! be held accountable? If an advertiser buys ad space, may it determine the fitness of the ad? Otherwise stated, may an intermediary privatize censorship?

Tan began with an ode: “Liberty takes on different shades. It is a universal concept with varying peculiar incarnations. To an innocent man accused of wrongdoing, it is exercising his right to be heard; while to the wrongdoer feigning innocence, it is enjoying his right to silence.”

Then, for expanding the frontiers of liberty to heretofore unimaginable height and breadth, she exalted the internet: “Cyberspace is today’s playground. It is where we get our information, ramble about the trivialities of daily life, speak out against oppressive rulers, make friends, even find love … with the mere press of a button. At no other point in time has society been able to exercise its freedom of expression with such ease.”

Finally, she gracefully pirouetted to the subject matter of FLP’s dissertation contest: “In this digital day and age, when liberty and prosperity are so uniquely intertwined in the internet, how does the rule of law safeguard both?” Touché!

To answer the questions she raised, Tan used the “Black Letter Approach.” Consistent with the borderless world of cyberspace, she explored beyond Philippine laws and jurisprudence and went far and wide to multinational treaties and documents, mainly the  United Nations’ Guiding Principles on Business and Human Rights, the Covenant on Civil and Political Rights, the Covenant on Social, Economic and Cultural Rights and the Universal Declaration on Human Rights.

She also extensively analyzed international jurisprudence (like decisions and opinions of the International Court of Justice and the highest courts of the United States, European Union, France, Hungary, Estonia, etc.) as well as the published works of internationally recognized publicists and professors.

After extensive search and research, she found that, by and large, in the United States and Europe, intermediaries were held liable only if they exercised “editorial control” over the contents of their websites. In contrast, more restrictive states like China and Thailand penalize intermediaries for the illegal content on their sites, thereby triggering a “repressive effect” on free speech.

As an alternative to the “control test,” Tan posits the “economic interest test” used by the European Court of Human Rights which determined liability on whether the intermediary had a commercial interest in the uploading of the content or in the posting of the comment.

To sum up, Tan believes passive “intermediaries should not be made to assess the lawfulness of content, for that is a judicial question best resolved by a court … [They] should remain neutral platforms … Only upon refusal to comply with a valid order of the courts should they be found liable.”

To enjoy the full flavor of her piece, please visit www.libpros.com.

Constitutionality of joint explorations in WPS

First published by the  / 05:06 AM March 11, 2018

To avoid problems with China in extracting the natural resources of the Philippines in the West Philippine Sea, Secretary Harry Roque Jr., proposed “joint exploration agreements” with Chinese-owned companies, as had been done by Vietnam and Brunei, saying these agreements have been upheld in La Bugal-B’laan vs Ramos (Dec. 1, 2004).

Control by the state. Au contraire, Acting Chief Justice (ACJ) Antonio T. Carpio opined in an interview that La Bugal referred only to land extractions, not to those in water. He added that any deal with Chinese companies involving our country’s exclusive economic zones, like the Recto Bank, would be unconstitutional unless these companies recognize Philippine sovereignty.

To be sure, the 246-page La Bugal, passed 10-4 with one abstention, held that all natural resources are owned by the state and their “exploration, development and utilization” (EDU) may be undertaken by the state itself or through 1) coproduction, 2) joint venture, or 3) production-sharing agreements with corporations owned at least 60 percent by Filipino citizens.

Additionally, the President may enter into financial and technical assistance agreements (FTAAs) with foreign-owned companies for the “large-scale” EDU of our “minerals, petroleum and other mineral oils.” Within 30 days, he “shall notify Congress” of every such contract.

FTAAs, the Court said, must always be subject to the “full control” of the state. “Full control” is similar to “that exercised by the board of directors of a private corporation; the performance of managerial, operational, financial, marketing and other functions may be delegated to subordinate officials or given to contractual entities, but the board retains full residual control of the business.”

Though La Bugal involved minerals located on land, nowhere can we find a statement limiting the ruling only to terrestrial minerals. Neither did it say that the President can enter into “joint exploration agreements” with foreign entities.

But, as the ponente of La Bugal, I think ACJ Carpio is right in stressing that “full control” must always remain with the Philippines. Nonetheless, Roque would also be correct if he can show that his proposed “joint exploration agreements” really refer to and will be treated as FTAAs. Then, they could be covered by La Bugal and the President (and not anyone else) can enter into FTAAs even with 100-percent Chinese companies to explore, develop and utilize the minerals and petroleum in the WPS. Understood in this context, Carpio’s and Roque’s positions are not irreconcilable.

Law scholars.

ACJ Carpio will be the guest of honor and speaker at Ateneo de Manila in Rockwell, Makati, on March 23 when the Foundation for Liberty and Prosperity and the Tan Yan Kee Foundation Inc. (TYKF), with the cooperation of the Philippine Association of Law Schools (PALS) award 21 law scholarships to:

Third year — Leo Francis Abot (Ateneo de Manila), John Anthony Almerino (U of San Carlos), Arvin Paolo Cortez (Ateneo de Manila), Mikael Gabrielle Ilao (U of  Cordilleras), Kenneth Glenn Manuel (UST), King Anthony Perez (U of Cebu), Josiah David Quising (FEU), Jun Dexter Rojas (Polytechnic U), Julienne Therese Salvacion (San Beda Manila) and Ma. Vida Malaya Villarico (Polytechnic U).

Fourth year — Karina Mae Badua (UST), Sean James Borja (Ateneo de Manila), Kaycelle Anne Castillo (FEU), Ervin Fredrick Dy (UP), Rexlyn Anne Evora (Polytechnic U), Katrina Monica Gaw (Ateneo de Manila), Summerson Macasarte (St. Thomas More), Nigel Carmelo Reago (De La Salle U), Jose Angelo Tiglao (De La Salle U), Althea Vergara (U of San Carlos) and Vanessa Gloria Vergara (Ateneo de Manila).

P200,000 scholarships. Each of them will get a scholarship grant of P200,000 divided into P80,000 for monthly stipends, P20,000 for books and a maximum of P100,000 for tuition, plus a certificate of recognition.

They were selected by a board of judges composed of ACJ Carpio, chair, former education secretary Edilberto C. de Jesus, PALS president Sedfrey M. Candelaria, TYKF executive Elizabeth T. Alba, and Asian Development Bank consultant Joel Emerson J. Gregorio.

Acting Chief Justice Carpio to Award 21 FLP Law Scholars

Acting Chief Justice Antonio T. Carpio will be the guest of honor and speaker during the Awarding Ceremonies of 21 law scholars of the Foundation for Liberty and Prosperity (FLP) and the Tan Yan Kee Foundation (TYKF) to be held on March 23, 2018 at the Ateneo de Manila in Rockwell Center, Makati.

Of the 21 scholarships, ten (10) are for 3rd year and eleven (11) are for 4th year law students as follows: (for third year) Leo Francis Abot (Ateneo de Manila), John Anthony Almerino (University of San Carlos), Arvin Paolo Cortez (Ateneo de Manila), Mikael Gabrielle Ilao (University of the Cordilleras), Kenneth Glenn Manuel (UST), King Anthony Perez (University of Cebu), Josiah David Quising (FEU), Jun Dexter Rojas (PUP), Julienne Therese Salvacion (San Beda – Manila) and Ma. Vida Malaya Villarico (PUP).

For fourth year: Karina Mae Badua (UST), Sean James Borja (Ateneo de Manila), Kaycelle Ann Castillo (FEU), Ervin Fredrick Dy (UP), Rexlyn Anne Evora (PUP), Katrina Monica Gaw (Ateneo de Manila), Nigel Carmelo Reago (De La Salle University), Jose Angelo Tiglao (De La Salle University), Summerson Macasarte (St. Thomas More), Althea Vergara (University of San Carlos), and Vanessa Gloria Vergara (Ateneo de Manila).

Each of the scholars will receive P200,000, divided into P100,000 maximum for tuition, P20,000 for books, and P80,000 for monthly stipends. The FLP scholars were selected based on academic merit and their ability to propagate and espouse the FLP’s philosophy of liberty and prosperity under the rule of law.

The Legal Scholarship Program is sponsored by FLP with a financial grant from the TYKF and co-sponsored by the Philippine Association of Law Schools (PALS).

Acting Chief Justice Carpio headed the Board of Judges which selected the scholars. The members were: former Education Secretary Edilberto C. de Jesus, TYKF Executive Elizabeth Alba, PALS President and Ateneo Law Dean Sedfrey M. Candelaria, and Atty. Joel J. Gregorio, members.

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The FLP Legal Scholarship Program is merit-based and aims to look for the best and the brightest law students in the country. It is open to all third and fourth year students of law schools that have obtained a percentage of passing above the overall average percentage of passing in bar exams based on the statistical data from the Office of the Bar Confidant of the Supreme Court.

To qualify, the grantees must be (1) incumbent 3rd or 4th year students in one of the eligible law schools, (2) among the top 20 of the batch in their respective schools, (3) have a cumulative average not lower than 85% or 2.25 for the immediately preceding school year, (4) no dropped subject and no grade lower than 75% or 3.0, and (5) have enrolled and completed the full load for each school year. They must also submit an essay on the FLP’s philosophy of liberty and prosperity under the rule of law and how he/she will apply the philosophy in his/her legal career.

The FLP was founded in 2011 to perpetuate the core judicial philosophy of retired Chief Justice Artemio V. Panganiban — that jurists and lawyers should safeguard liberty and nurture prosperity under the rule of law.

Its Board of Trustees is composed of CJ Panganiban (chairman), Sec. de Jesus, retired Supreme Court Justice Angelina Sandoval-Gutierrez, Evelyn T. Dumdum, Asian Development Bank Consultant Joel Emerson J. Gregorio, Atty. Jennifer J. Manalili, Prof. Elenita C. Panganiban and Maria Elena P.S. Yaptangco (members).

The Tan Yan Kee Foundation is the corporate social responsibility arm of the Lucio Tan Group of Companies. It approaches corporate social responsibility from a holistic commitment framework targeting education; culture and sports; health and social welfare including environmental concerns; research; and manpower development. For details, please visit www.tanyankee.org.
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Program co-sponsor:

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Federal-presidential vs hybrid system

First published by the  / 05:12 AM March 04, 2018

As its first major decision, the Consultative Committee (Con-Com) formed by President Duterte to review the 1987 Constitution chose the “federal-presidential” system over the “hybrid semi-presidential” scheme by a vote of 11-7.

Contrary to PDP-Laban. Similar to our current unitary setup, the winning system calls for a tripartite separation of legislative, executive and judicial powers with a nationally elected president and vice president. And—similar to that in the United States—it has a secondary layer of regions or “states” exercising authority over local governance including state courts (which are separate from federal courts).

However, this significant Con-Com milestone runs contrary to the PDP-Laban’s concept of federalism under which, per the ruling party’s website as of March 2017, the country would have a president, as “head of state … directly elected by the people … responsible for national defense and foreign affairs” and a prime minister, as “the head of government … elected by the House of Representatives/National Assembly … and responsible for domestic and economic policy.” In my humble view, this is more akin to the presidential-parliamentary system of France and Russia.

Under the US federal-presidential model, the vice president is not only retained but also given the power and duty to preside over the Senate, which is the coequal lawmaking partner of the House of Representatives. And the Supreme Court retains its coequal tripartite status with the president and Congress.

In contrast, under the French system where the tripartite separation of powers is not observed, the vice president becomes redundant, and the Senate and the Supreme Court are reduced in status and power.

Given that PDP-Laban is the party in power, with President Duterte as its chair, Senate President Aquilino Pimentel III as its president, and Speaker Pantaleon Alvarez as its secretary general, how will Congress treat this fundamental recommendation of the Con-Com? Will the PDP-Laban supermajority in Congress heed it? Let us wait and see.

Dissertation contest.

Kudos to Raphael Lorenzo Pangalangan of Oxford University and the University of the Philippines (UP) and to Tess Marie Tan of the University of San Carlos for copping the first and second places, respectively, in the 2017-2018 nationwide “Dissertation Contest” sponsored by the Foundation for Liberty and Prosperity (FLP).

Pangalangan’s winning piece, “Enforcing Liberty and Prosperity Through the Courts of Law: A Shift in Legal Thought from Juridification to Judicialization,” will receive P300,000 plus a plaque of recognition during the formal awarding ceremony on March 23 at the Ateneo de Manila Law School in Makati. He is the son of International Criminal Court Judge Raul C. Pangalangan and Prof. Elizabeth Pangalangan of the UP College of Law.

Tan’s “Liberty and Prosperity in the Digital Age: Determining the Proper Treatment of Online Intermediaries in Light of the United Nations Guiding Principles on Business and Human Rights” will get P200,000 plus a plaque also. Both pieces may be accessed at www.libpros.com. I will analyze them in future columns.

Board of judges. They bested four other finalists: Rexlyn Anne Evora (Polytechnic University of the Philippines), Helen May Frias (Far Eastern University), Janine Faye Napoles (Centro Escolar University) and Joben Mariz Odulio (Ateneo de Manila University), who will each get P20,000 plus a certificate of recognition.

This unique intellectual writing contest, sponsored by the FLP, with funding support from the Ayala Group and cosponsored by the Philippine Association of Law Schools (PALS), aims to augment existing literature on the FLP’s core philosophy of safeguarding liberty and nurturing prosperity under the rule of law. It is open to third and fourth year law students and those taking masters of law.

The board of judges was composed of Supreme Court Justice Presbitero J. Velasco Jr. (chair), former education secretary Edilberto C. de Jesus, Ayala Corp. general counsel Solomon M. Hermosura, PALS president and Ateneo law dean Sedfrey M. Candelaria, and Prof. Tanya Lat, members.

 

FLP Announces the Winners of 2017 Dissertation Contest

The Foundation for Liberty and Prosperity (FLP) is pleased to announce that Raphael Lorenzo A. Pangalangan, a graduate student of the Oxford University and the University of the Philippines (UP), won the first prize in the FLP Dissertation Contest.Raphael Lorenzo Pangalangan

The son of International Criminal Court Judge Raul C. Pangalangan and UP Law Professor Elizabeth A. Pangalangan, he won P300,000 cash and a plaque of recognition for his entry: “Enforcing Liberty and Prosperity through the Courts of Law: A Shift in Legal Thought from Juridification to Judicialization”.

Copping the second place is Tess Marie P. Tan, senior law student of the University of San Carlos in Cebu City. She will receive P200,000 cash plus a plaque of recognition for her entry: “Liberty and Prosperity in the Digital Age: Determining the Proper Treatment of Online Intermediaries in Light of the United Nations Guiding Principles on Business and Human Rights”. The papers of the two winners are downloadable from this website.

The two bested four other finalists: Rexlyn Anne M. Evora (Polytechnic University of the Philippines), Helen May M. Frias (Far Eastern University), Janine Faye A. Napoles (Centro Escolar University), and Joben Mariz T. Odulio (Ateneo de Manila University), who will each receive P20,000 and a certificate of recognition.

The awarding ceremonies will be held on March 23, 2018 at the Justitia Hall of the Ateneo Law School in Makati City.

The Dissertation Contest is sponsored by FLP with a financial grant from the Ayala Corporation, and co-sponsored by the Philippine Association of Law Schools (PALS).

The winners were selected by the FLP Board of Judges composed of: Supreme Court Senior Justice Presbitero J. Velasco, Jr., chairman, former Education Secretary Edilberto C. de Jesus, Ayala Corporation General Counsel Solomon M. Hermosura, PALS President and Ateneo Law School Dean Sedfrey M. Candelaria, and Law Professor Tanya Lat, members.

The FLP Dissertation Contest aims to augment existing literature on the Foundation’s core philosophy of liberty and prosperity under the rule of law. The contest is open to third year and fourth year law students and those taking Master of Laws.

The FLP was founded in 2011 to perpetuate the core judicial philosophy of retired Chief Justice Artemio V. Panganiban — that jurists and lawyers should safeguard liberty and nurture prosperity under the rule of law.

Its Board of Trustees is composed of CJ Panganiban (chairman), Sec. de Jesus, retired Supreme Court Justice Angelina Sandoval-Gutierrez, Evelyn T. Dumdum, Asian Development Bank Consultant, Joel Emerson J. Gregorio, Jennifer J. Manalili, Prof. Elenita C. Panganiban and Maria Elena P.S. Yaptangco.

Ayala is the country’s long standing partner in the pursuit for progress and nation building, developing businesses that transform industries, challenging the status quo, and bringing innovations in the Philippines and abroad that contribute to the nation’s social and economic agenda. For details, please visit www.ayala.com.ph.

In cooperation with

 

7th Annual Report

 (January 1, 2017 to December 31, 2017)

 

I. Introduction

Officially established on October 27, 2011, the Foundation for Liberty and Prosperity is now on its fourth year of operation. Ably led by its Board of Trustees—namely Chief Justice (CJ) Artemio V. Panganiban, CJ Hilario G. Davide Jr., Washington Z. Sycip, Edilberto C. De Jesus, Elenita C. Panganiban, Maria Theresa P. Mañalac, Jennifer J. Manalili, Evelyn T. Dumdum and Joel Emerson J. Gregorio—the FLP has steadily gained recognition from its stakeholders and partners through its various programs, projects and activities.

The Foundation’s vision is a society that fully appreciates the necessity of “Liberty & Prosperity” and their essential interdependence. It underscores FLP’s core philosophy, that liberty and prosperity are mutually inclusive. The Foundation’s mission is to educate the people regarding this fundamental and essential interrelation between liberty and prosperity by initiating, maintaining, organizing, and supporting projects aimed at promoting, educating, training, developing, assisting and protecting liberty and prosperity under the rule of law. This year, FLP continues to implement its program on legal education with focus on four (4) key areas of development as stated in its Manual of Operations: “value formation,” “legal and scholarly education,” “information dissemination and philosophy propagation” as well as organizing “fora, events, conferences and the like.” The Foundation has also sponsored and undertaken activities that likewise advance a fifth key area of development: “publications and media dissemination.

FLP Officers

The FLP continues to serve its purpose through its FLP officers, namely CJ Artemio V. Panganiban (Chairman of the Board), Evelyn T. Dumdum (President), Tanya Karina A. Lat (Executive Vice-President), Rebecca G. Felix (Treasurer), Joel Emerson J. Gregorio (Corporate Secretary), Martin Angelo L. Esguerra (Executive Director [until June 2017]), and Susana N. Gavino (Executive Director [since August 2017]). In addition, the chairs of the various standing committees are: CJ Artemio V. Panganiban (Executive Committee), Washington Z. Sycip† [until October 7, 2017] (Finance Committee), Justice Angelina Sandoval-Gutierrez (Governance Committee), and Edilberto C. De Jesus (Education Committee).

The first batch of officers was CJ Artemio V. Panganiban, Chairman of the Board, Maria Elena P. Yaptangco, President; Evelyn T. Dumdum, Executive Vice President; Elenita C. Panganiban, Treasurer; and Joel Emerson J. Gregorio, Corporate Secretary.

 

II. Ongoing Programs and Projects

The FLP was founded to perpetuate the core judicial philosophy of then Chief Justice Artemio V. Panganiban—that jurists and lawyers should not only safeguard the liberty of our people but must also nurture their prosperity under the rule of law. In the first few years since its incorporation, FLP focused on the following activities: (1) FLP’s flagship project, the “Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity,” (2) the official FLP Website (www.libpros.com), and (3) the “Liberty & Prosperity Journal,” hitherto an e-newsletter. By 2017, the Foundation is implementing two education-centered programs to complement its flagship project: the FLP Dissertation Writing Contest and FLP Legal Scholarship Program.

 

Professorial Chairs Program

The “Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity” is being implemented for more than five (5) years now following its launch on 18 September 2012 at the Metrobank Auditorium, Makati City. This flagship project is in partnership with the Metrobank Foundation, which has so far donated a total of One Million Four Hundred Thousand Pesos (PhP 1,400,000) in co-sponsorship of the program. The total funds for the project, including FLP’s co-sponsorship fund, amounts to Two Million Eight Hundred Thousand Pesos (PhP 2,800,000).

FLP intended its first program, in the format of the professorial chair project, to be educational and implemented in an academic setting. The main objective is to get educational institutions and law schools to research and propagate the philosophy at the level of the academia (including training of students, professors, lawyers, and judges.)

FLP started with the appointment of nine (9) deans of distinguished law schools and the Chancellor of the Philippine Judicial Academy (PhilJA)[1]. The outputs varied in form from traditional lectures, debates, as well as moot court competitions. The written lectures from the chair holders have been uploaded to the FLP website and published in the Liberty & Prosperity e-newsletter. These shall be compiled and will eventually be published in a book form as well as other modes of communications under the information, education and communication projects of FLP.

In 2017, the appointment of two (2) chair holders were renewed, namely (1) Atty. Sedfrey M. Candelaria (Dean, Ateneo de Manila School of Law); and (2) Atty. Joan Sarausos-Largo (Dean, University of San Carlos School of Law and Governance). In addition, four new appointments were made: Dean Melencio S. Sta. Maria, Far Eastern University, Dean Gemy Lito L. Festin, Polytechnic University of the Philippines; Professor Elizabeth Aguiling-Pangalangan, University of the Philippines College of Law; and Professor Tanya Karina A. Lat, Ateneo Law School. This brings the number of chair holders to 13.

The table below shows the output of each chair holder:

  DATE CHAIR HOLDER OUTPUT
1 26 September 2017 Dean Melencio Sta. Maria, Far Estern University Institute of Law Human Rights, Politics, International Law and Trade Arrangement and Economic Prosperity: A Reading of the Philippine Situation
2 9 December    2016 Dean Joan Sarausos-Largo, University of San Carlos School of Law and Governance (Cebu City)  

Charting the Patch to a Relevant and Responsive Legal Education in the Philippines: A Draft Law Curriculum for the 21st Century Filipino Lawyer

 

3 26 November 2014 Dean Mikhail Lee. L. Maxino, Silliman University College of Law (Dumaguete City) Right to life, Liberty, Prosperity: A Seamless Trilogy to Prosperity
4 11 September 2014 Dean Joan Sarausos-Largo, University of San Carlos School of Law and Governance (Cebu City)  

ASEAN Integration 2015 and the Imperative for Reforms in the Legal Profession and the Legal Education in the Philippines

 

5 5 March 2014 Dean Sedfrey M. Candelaria, Ateneo de Manila University School of Law The 2014 Chief Justice Artemio V. Panganiban – Liberty & Prosperity Public International Law Moot Court Competition
6 21 February      2014 Dean Nilo T. Divina, University of Santo Tomas Faculty of Civil Law  

The Unpaid Creditor vs The Distressed Debtor: Proposals to Balance their Competing Interests

 

7 7 February 2014 Dean Andres D. Bautista, Far Eastern University Institute of Law Regulating the Practice of Professions by Foreigners
8 29 November 2013 Dean Sedfrey M. Candelaria, Ateneo de Manila University School of Law  

Comparative Analysis of the Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 and Framework Agreement on the Bangsamoro (FAB)

 

9 3 October 2013 Dean Reynaldo U. Agranzamendez, University of the Cordilleras College of Law (Baguio City) The Indigenous Peoples Rights Act (IPRA): A Vehicle for Liberty and Prosperity
10 20 August 2013 Dean Joan Sarausos-Largo, University of San Carlos School of Law and Governance (Cebu City)  

LIBRT, The Economic Provisions of the 1987 Constitution be Amended so as to Allow Liberalization of Economic Policies by Congress

University of Santo Tomas Law Debate Team Position Paper on Charter Change

University of San Carlos Law Debate Team Position Paper on Charter Change

 

11 18 April 2013 Chancellor Adolfo S. Azcuna, Philippine Judicial Academy  

Supreme Court Decisions on the Economic Provisions of the Constitution

 

12 13 March 2013 Dean Sedfrey M. Candelaria, Ateneo de Manila University School of Law  

Chief Justice Artemio V. Panganiban Liberty and Prosperity Debate (Finals)

The Constitutionality of the Aurora Pacific Eco Zone (APECO), per LIBRT R.A. 9490 (as amended by RA 10083)

APECO Position Paper: Affirmative

APECO Position Paper: Negative

 

13 6 March 2013 Dean Joan Sarausos-Largo, University of San Carlos School of Law and Governance (Cebu City) The Powerful Judiciary and Rule of Law in the Philippines
14 5 November 2012 Dean Jose Manuel I. Diokno, De La Salle University College of Law  

The Philippine Judiciary: Problems and Prospects

 

15 19 September 2012 Dean Sedfrey M. Candelaria, Ateneo de Manila University School of Law Finance and Law: Understanding the Institutional and Functional Role of the International Monetary Fund During Sovereign Debt Crisis Situations

 

FLP Dissertation Writing Contest

The FLP Dissertation Contest is a five-year program which aims to augment the Foundation’s flagship project by incorporating new, dynamic and perhaps more profound input to the body of works discussing FLP’s core philosophy.  We believe that the fresh insight and unique perspective of law students will provide bold, novel and innovative avenues for the development of the Foundation’s tenets.

FLP will look for the best thesis and/or dissertation – or its equivalent in law schools not offering the Juris Doctor program – that espouses the philosophy of liberty and prosperity under the rule of law.  The contest is co-sponsored with the Ayala Group and in cooperation with the Philippine Association of Law Schools (PALS).

The contest is open to third year and fourth year law students as well as those taking up Master of Law.  Only one (1) entry per student is allowed.  Each entry must be a thesis/dissertation or its equivalent that espouses the philosophy of liberty and prosperity under the rule of law.  An entry must be certified to have gone through the process of a thesis/dissertation or a procedure similar thereto and that it is of thesis/dissertation type and quality.

The Foundation will also tap its roster of professorial chair holders, among others, to create the Panel of Judges who will choose the winning entries and conduct dialogues where the winners shall discuss, argue and debate their submissions, engendering a deeper understanding of the core philosophy of the Foundation.  These discourses on their work with the Panel of Judges will foment the kind of analysis that will contribute to the evolution, development and enrichment of the Foundation’s philosophy.  FLP will also constitute a Dissertation Contest Committee to assist the Panel of Judges.

Up to twenty (20) qualifying entries will be chosen by the FLP Dissertation Contest Committee from all entries submitted.  Thereafter, a short list of up to ten (10) entries will be chosen by the FLP Panel of Judges from the twenty (20) qualifying entries.  The authors on the shortlist will then each submit a new entry, either expanding on their respective original entries or covering a completely new subject.

The FLP Panel of Judges will choose the five (5) recipients of the primary awards (first, second and honorary mentions) from the new entries submitted by the ten (10) authors on the short list.  Monetary awards are as follows: PhP300,000 to the first-place winner, PhP 200,000 to the second-place winner, and PhP100,000 each to three (3) honorary mentions. These winners will also receive commemorative plaques.  The twenty (20) qualifying entries chosen by the FLP Dissertation Contest Committee will each receive PhP20,000.

The Ayala Corporation has already agreed to facilitate the provision of funds for this project through its various partners and has committed to FLP the funding for the entire five-year program.  They have given Two Million Pesos (PhP 2,000,000) for the first year of the program.

Activities in School Year 2017-2018. The FLP conducted an information campaign regarding the contest in all law schools of the country.  Flyers and posters were sent to the law schools throughout the country through their respective deans for dissemination to the law students to encourage them to submit entries to the dissertation writing contest. FLP officials visited law schools in the National Capital Region and in Cebu and discussed the mechanics/guidelines of the contest. Among these law schools are the University of the Philippines, Ateneo Law School, De La Salle University, Centro Escolar University, Far Eastern University, Polytechnic University of the Philippines, University of San Carlos, Pamantasan ng Lungsod ng Maynila, and San Beda University. Information regarding the contest was posted online on the FLP and some law school websites and through social media – Facebook pages of FLP, PALS, Association of Law School Students of the Philippines, Bar Boys, and law schools. FLP also tapped its scholars in disseminating information regarding the contest to their fellow students.

Deadline for submission of entries was moved twice to allow more students to join the contest and to synchronize the contest timetable with the law schools’ calendar. During the discussion with the law school deans, it was learned that thesis/dissertation writing usually starts in the second semester of the 3rd year level and it is only in the second semester of the 4th year level when students have a full paper ready for presentation.

With the deadline extended to 30 November 2017, a total of 18 entries were received from the following schools:

School No. of Entries
1.     Ateneo Law School 7
2.     Centro Escolar University 1
3.     De La Salle University 1
4.     Far Eastern University Institute of Law 1
5.     Polytechnic University of the Philippines 1
6.     San Beda College – Manila 1
7.     University of Oxford/University of the Philippines 1
8.     University of the Philippines 1
9.     University of San Carlos 4
Total 18

 

The table below shows the list of entries.

Entries to the Dissertation Writing Contest S/Y 2017-2018

NAME TITLE
1. Nicolene S. Arcaina, Ateneo Law School Rules and Rights: Invalidating the BJMP Manual’s Provisions Allowing for Close Confinement
2. Gerime Mae A. Basalo, University   of San Carlos  

An Appellate Mechanism’s Appeal: A Critical Analysis On the International Centre for Settlement of Investment Disputes Convention (ICSID) by the Philippines as Basis for Amendments to Introduce an Appellate Mechanism

 

3. Sabrina Victoria M. Dayao, Ateneo Law School Reframing Suicide: Establishing the Compensability of Suicides Due to Work-Related Psychosocial Disorders
4. Maria Ana Espinosa, San Beda University  

The Plight of Internally Displaced Persons in the Philippines

 

5. Rexlyn Anne M. Evora, Polytechnic University of the Philippines Delivering to the Poor: An Analysis of the Microfinance Policies in Cooperatives in Rural Areas in the Philippines
6. Daniel John A. Fordan, Ateneo de Manila University  

Liberating Information for a Learned Citizenry: Reinvigorating the Fair Use Doctrine as an Integral Component of Copyright Infringement

 

7. Helen May M. Frias, Far Eastern University The Role of Private Justice: Alternative Dispute Resolution (ADR) in the Promotion and Protection of Liberty and Prosperity Under the Rule of Law
8. April Joy B. Guiang, Ateneo de Manila University  

The Supremacy of Chief Executive Powers in Treaty Withdrawal Under the Philippine Constitutional Framework

 

9. Carlos S. Hernandez Jr., University of the Philippines Defining the Undefinable: Treating Atheism, Agnosticism, and Secular Humanism as Religion for Conscientious Objection and Tax Exemption Purposes
10. Shiela Vae A. Hoylar, University of San Carlos  

Transcending the Intangibility of Philippine Corporations: a Proposal for a Legal Framework Criminalizing Corporate Killings

 

11. Mark Nester T. Mendoza, Ateneo de Manila University Guarding the Guards: Allowing Hearsay Evidence in Administrative Proceedings Against Judges and Justices in Charges of Bribery Under Section 8 (1), Rule 140 of the Rules of Court
12. Janine Faye A. Napoles, Centro Escolar University  

Leadership Quality Reconsideration: Professionalizing Philippine Elective Officials at the National Level Through the Imposition of Academic Qualifications

 

13.  Marcley Augustus D. Natu-El, University of San Carlos Regulating Bitcoin in the Philippines, A Study On Risks and Recommended Legal Solutions: Striking the Balance between Security and Development.
14. Joben Mariz Odulio, Ateneo de Manila University  

Weeding Out the Fake Grassroots: Expanding the Cybercrime Prevention Act of 2012 to Include Online Astroturfing as an Offense

 

15. Raphael Lorenzo A. Pangalangan, University of Oxford/University of the Philippines Bread and Freedom, Rice and Rights: Enforcing Liberty and Prosperity through the Courts of Law
16. Nigel Carmelo Q. Reago, De La Salle University  

Release of Prisoners Pending Appeal from Orders of Discharge Issued by Lower Courts in Habeas Corpus Petitions

 

17. Joren Lex A. Tan, Ateneo de   Manila University The Clouds Above: A Study on the Applicability of the Current Search and Seizure Procedure of the Philippines to Online Computer Data
18. Tess Marie P. Tan, University of San Carlos  

Liberty and Prosperity in the Digital Age: Determining the Proper Treatment of Online Intermediaries in Light of the United Nations Guiding Principles on Business and Human Rights

A Screening Committee headed by FLP Corporate Secretary, Atty. Joel Gregorio, conducted the initial screening of the 18 entries and determined that 5 entries passed the qualifying round. Another 3 entries were found to have potential and may be considered for a merit award subject to their submission of a revised paper that meets the requirements of the contest.

Authors of qualifying entries, as well as the authors of entries with potential, were advised to submit a new entry (revised/improved entry) by 5 pm, January 26, 2018. The shortlist is shown in the table below:

NAME TITLE
A. Qualifying Entries
1. Rexlyn Anne M. Evora, Polytechnic University of the Philippines Delivering to the Poor: An Analysis of the Microfinance Policies in Cooperatives in Rural Areas in the Philippines
2. Helen May M. Frias, Far Eastern University  

The Role of Private Justice: Alternative Dispute Resolution (ADR) in the Promotion and Protection of Liberty and Prosperity Under the Rule of Law

 

3. Janine Faye A. Napoles, Centro Escolar University Leadership Quality Reconsideration: Professionalizing Philippine Elective Officials at the National Level Through the Imposition of Academic Qualifications
4. Raphael Lorenzo A. Pangalangan, University of the Philippines/ University of Oxford  

Bread and Freedom, Rice and Rights: Enforcing Liberty and Prosperity through the Courts of Law

 

5. Tess Marie P. Tan, University of San Carlos Liberty and Prosperity in the Digital Age: Determining the Proper Treatment of Online Intermediaries in Light of the United Nations Guiding Principles on Business and Human Rights
B. With Potential; may be considered for merit award
6. Daniel John A. Fordan, Ateneo de Manila University Liberating Information for a Learned Citizenry: Reinvigorating the Fair Use Doctrine as an Integral Component of Copyright Infringement
7. Joben Mariz Odulio, Ateneo de Manila University  

Weeding Out the Fake Grassroots: Expanding the Cybercrime Prevention Act of 2012 to Include Online Astroturfing as an Offense

 

8. Joren Lex A. Tan, Ateneo de Manila University The Clouds Above: A Study on the Applicability of the Current Search and Seizure Procedure of the Philippines to Online Computer Data

Meanwhile, FLP organized its Board of Judges with Supreme Court Justice Presbitero J. Velasco, Jr. (Chairman), and Former Education Secretary Dr. Edilberto De Jesus, PALS President Sedfrey Candelaria, Ateneo Law School Professor Tanya Karina A. Lat, and Ayala Corporation General Counsel Solomon Hermosura as members.

 

FLP Scholarship Program

This is a four-year program.  The Foundation is sponsoring a unique, merit-based FLP Scholarship Program. Co-sponsored by the Tan Yan Kee Foundation and also undertaken in cooperation with PALS, it aims to look for the best and the brightest law students in the country.

There will be ten (10) scholars for the program and the scholarship is open to those entering their third year as law students.  FLP is opening ten (10) slots to all law schools that have obtained a passing percentage above the overall passing percentage for the bar exams of the relevant year based on the statistical data from the Supreme Court Office of the Bar Confidant.  No law school shall have more than three (3) awardees in a year.

Applicants must submit an essay written in English with a minimum of two thousand (2,000) words and a maximum of 3,000 words.  The essay must be on the philosophy of the Foundation, expanding on and espousing the precept: safeguarding of liberty and nurturing of prosperity under the rule of law, and how he/she will apply the same in his/her legal career.

There will be an interview to be conducted by the FLP Panel of Judges who will be given full discretion in the conduct of the said interview.  The Panel shall consider the candidate’s ability to demonstrate clearly, logically and concisely what he/she has done and intends to do to propagate and espouse the philosophy of liberty and prosperity under the rule of law.  Although the scholarship is merit-based, the less privileged shall be preferred in case of a tie between two nominees.  Selection shall be final when affirmed by the FLP.

Awardees must agree to the terms and conditions of the FLP Scholarship Program, including but not limited to, the requirement to provide volunteer services for the Foundation as well as giving back to the FLP Scholarship Program to ensure its sustainability such as teaching law subjects that espouse the philosophy of liberty and prosperity, developing a concept/program along the philosophy of the FLP and commitment to mentoring other law students, subject to institutional arrangements with partner law schools.  Awardees must likewise agree to enter into a formal commitment agreement with FLP and the pertinent academic institution for this purpose.

Each of the ten FLP Scholarship is a monetary scholarship award of PhP200,000 of which a maximum of PhP100,000 shall be for tuition fee and PhP20,000 for the book allowance.  The amounts for the tuition fee and the book allowance will be transferred to the account of the student created especially for this purpose and in tranches corresponding to the schedule of payment for tuition fee per semester of the pertinent academic institution.  The remaining PhP 80,000 for stipend shall be deposited monthly throughout the academic year to the same account created for this purpose.  Only such amount needed shall be deposited.  If the tuition fee component of the monetary scholarship award is in excess of the awardee’s tuition, the balance will be returned to FLP, which will be used for the scholarship program.  If the awardee is entitled to another scholarship award, he/she will still receive the cash monetary scholarship award to be provided by the FLP.

The Tan Yan Kee Foundation has provided a total of Six Million Four Hundred Thousand Pesos (PhP 6,400,000) for the first two school years of the program.

Activities in School Year 2017 – 2018. The FLP is continuously undertaking activities that will broaden the reach of its programs. As usually done at the start of its program implementation, FLP conducted an information campaign on the FLP legal scholarship program in the 34 law schools of the country that had a percentage of passing higher than the overall percentage of passing for the 2015 bar exams.  FLP produced flyers and posters and sent these to the qualified law schools throughout the country through their respective deans for dissemination to the law students to encourage them to submit applications to the legal scholarship program. Posters were also displayed in the law schools’ bulletin board.

FLP officials visited law schools in the National Capital Region and in Cebu and discussed the mechanics/guidelines of the program. Among these law schools are the University of the Philippines, Ateneo Law School, De La Salle University, Centro Escolar University, Far Eastern University, Polytechnic University of the Philippines, University of San Carlos, Pamantasan ng Lungsod ng Maynila, and San Beda University. Information regarding the contest was posted online on the FLP and some law school websites, and through social media – Facebook pages of FLP, PALS, Association of Law School Students of the Philippines, Bar Boys, law school student councils, and law schools. FLP also tapped its incumbent scholars in disseminating information regarding the scholarship program to their fellow students.

In the meetings with law school deans, FLP officials learned the challenges law students face in applying for FLP scholarship: the requirements of the FLP scholarship program are too high, students are having a hard time getting the grades required in the program, most of their students are working students and this contributes to the difficulty in maintaining high grades.

S/Y 2016-2017 Scholars. The FLP Board of Trustees reviewed the requirements of the Legal Scholarship Program and agreed to change the GPA requirement from 86% or 2 for each semester to 86% or 2 for the entire school year. Based on the revised GPA requirement, five (5) scholars qualified to continue their scholarship for the school year 2017-2018. These scholars are:

School Student GPA for the S/Y 2016-2017
Ateneo de Manila University Borja, Sean James B. 87
Far Eastern University Castillo, Kaycelle Ann M. 87
University of the Philippines Dy, Ervin Fredrick H. 1.8
Polytechnic University of the Philippines Evora, Rexlyn Anne M. 1.8
Ateneo de Manila University Vergara, Vanessa Gloria S. 90

The slots for the six (6) 2016-2017 FLP Scholars who were not able to maintain their scholarship was opened to new applicants.

S/Y 2017-2018 Legal Scholarship Program. For the school year 2017-2018, the legal scholarship guidelines were revised as follows:

2.3  Must have a cumulative grade point average (GPA) not lower than 85% or 2.25 for the immediately preceding school year (2017-2018);

2.4  No dropped subject and no grade lower than 75% or 3.0 during his or her stay at the law

The number of awardees was also increased to a maximum of three (3) for each school per year.

Sixteen (16) scholarship openings for the following: 10 scholars for incumbent third-year law students, and six (6) scholars for incumbent fourth-year law students. To allow more students to participate in the contest, the deadline for submission of entries was moved from September 15, 2017 to October 31, 2017.

By end of October 2017, the Foundation received a total of 25 applications. The table below shows the number of applicants for each year level.

 

School

Number of Applicants No. of Applicants Who Met Requirements
3rd Year 4th Year Total 3rd Year 4th Year Total
1 Ateneo Law School 2 1 3 2 1 3
2 De La Salle University 2 2 2 2
3 Far Eastern University Institute of Law 1 1 2 1 1
4 Polytechnic University of the Philippines 2 2 2 2
5 San Beda College-Alabang 1 1 1 1
6 San Beda College-Manila 3 1 4 1 1
7 St. Thomas More School of Law and Business (Tagum City) 1 2 3 1 1
8 University of Cebu 1 1 1 1
9 University of San Carlos (Cebu) 1 1 2 1 1 2
10 University of Sto. Tomas 1 1 2 1 1 2
11 University of the Cordilleras

(Baguio City)

2 2 2 2
12 University of the Philippines 1 1 1 1
  Total 15 10 25 12 7 19

The Board of Judges for the interview and final judging of applicants to the Legal Scholarship Program for S/Y 2017-2018 was organized with Supreme Court Senior Justice Antonio Carpio as Chairman, and Former Secretary of Education Dr. Edilberto C.  De Jesus, PALS President and Ateneo Law School Dean Sedfrey M. Candelaria, Tan Yan Kee representative Ms. Elizabeth T. Alba, and FLP Corporate Secretary Atty. Joel Emerson J. Gregorio as members.

Final evaluation and interview of applicants were scheduled to be held in February 2018.

FLP Newsletter 

FLP has so far released eight (8) e-newsletters. The two most recent issues are Volume IV Issue 1 and Volume V Issue 1.  Volume IV features the Fourth Annual Report as well as the Chairman’s lecture entitled: “ASEAN: Unleashing Entrepreneurial Ingenuity.”  Volume V on the other hand, features the Fifth Annual Report, and contains articles on PCNC’s site visit, FLP’s ongoing programs and projects as well as the Executive Director’s legal article entitled: “Untangling the Dragnet Clause.”

FLP Website

The Foundation has continued to use a simple, neat and uniform design aesthetic for its website (www.libpros.com) that remains consistent whatever device is being used to view or access it – either desktop, tablet or smartphone.  It features front and center the two (2) new programs being undertaken by the Foundation: the FLP Dissertation Writing Contest and the FLP Legal Scholarship Program.  The guidelines and forms for these programs have also been uploaded and are ready for download by interested participants and the public.  The current composition of the Board of Trustees has also been updated.  We have also provided a special email address for the Secretariat (secretariat@libpros.com) for coordination and support for these programs.  We will continue to work with the site’s administrator, Mr. Kristian Jeff C. Agustin, to further improve and enhance the website.

 

III. Recent Developments in 2017

Accreditation with the PCNC and BIR Certification

FLP accreditation with the Philippine Council for NGO Certification (PCNC) has been renewed, this time for an extended period of three years (compared to the previous one-year period accreditation) from March 31, 2017 to March 30, 2020.  This was after we submitted the necessary documents to PCNC and the site visit last August 23, 2016.  PCNC thereafter transmitted our application for renewal to the BIR.  FLP has already received the BIR’s Certification also effective for an extended period of three years from July 17, 2017 to April 5, 2020.

18th PCNC Annual Assembly

The Foundation, through its Executive Director, participated in the 18th PCNC Annual Assembly held last June 1, 2017 at the JY Campos Hall, UNILAB Bayanihan Center, Kapitolyo, Pasig City.  As one of the accredited members in good standing, FLP was able to participate in the discussions and vote for the new members of the PCNC Board of Trustees.

 

IV. Future Plans and Direction

FLP Visual Art Competition

A project proposed by Mr. Kristian Jeff C. Agustin, the Liberty & Prosperity: Images, Figures, Expressions (LIFE) is a visual art competition that aims to make known the Foundation’s philosophy of “liberty and prosperity under the rule of law” in creative ways.  It is designed after three well-established and long-running visual art competitions in the Philippines, namely: the DPC-PLDT Visual Art Competition, the Metrobank Art & Design Excellence Competition and the Shell National Students Art Competition.

By launching a new visual art competition, the FLP can make itself more relevant to the country’s art and culture scene, which is very instrumental in capturing or defining the “zeitgeist” of a particular society.  For instance, today’s zeitgeist of “Filipino Democracy” has eventually latched on to the consciousness and culture of Filipinos by way of the media’s constant revisiting of the EDSA People Power Revolution and representations of the spirit of “Filipino-ness” (especially by means of evocative images and stories). Hence, to better promote its vision of “a society that safeguards liberty and nurtures prosperity under the rule of law” to the public, the FLP must tap and develop the potential of Filipino artists, designers, and other creative practitioners.

Coffee Table Books on the Professorial Lectures and Speeches of CJ Panganiban

FLP also plans to partner with the Metrobank Foundation regarding the publication of two (2) coffee table books: one, a compilation of the lectures and output delivered under the CJ Panganiban Professorial Chair Program; and two, a compilation of selected speeches of CJ Panganiban.  Metrobank Foundation agreed in principle to sponsor said coffee table book projects and offered to assist FLP in undertaking the same considering that they have had several similar projects.

Support to the Reform Program of the Judiciary and the Ombudsman

In terms of its commitment to reforms, FLP plans to work closely with the SC and the Office of the Ombudsman in establishing a reform program patterned after the SC’s Action Program for Judicial Reform (APJR).  The Foundation is planning to seek the assistance from the World Bank (which provided the funding for the APJR) and other international funding institutions in this endeavor.

Legal Education Reform Program

Another avenue as regards reform (as well as education) is FLP’s plan to partner with the Legal Education Board in developing a program to reform the legal education in the Philippines.

Teaching Exemplars on the Rule of Law

The Department of Education (DepEd) has adopted the teaching exemplars on the rule of law developed under the Public Education on the Rule of Law Advancement and Support (PERLAS) Project of the Supreme Court and DepEd. The exemplars integrate concepts of the rule of law into the basic education curriculum to educate and inform the public on the functioning of a society anchored on the justice system and to mold the students into becoming responsible and law-abiding citizens. A total of 112 teachers from 82 public schools nationwide have been trained on the use of these exemplars in 2011.

FLP will collaborate with the Department of Education in revisiting these exemplars and enhance these as may be necessary to keep these relevant to the current situation in the country. FLP plans to assist in the roll-out of these exemplars to all public and private schools in the country.

FLP Museum

The Foundation is looking at establishing an FLP Museum where various memorabilia and important items will be kept and made available for viewing of the public.  This will be through a possible purchase of the entire floor of a building in FEU Makati at cost which the Chairman has proposed to the Chairman of FEU to be put up in the land purchased by FEU where the old 6-story Zuellig building is located at the corner of Ayala and Buendia Avenues.  The Chairman of FEU said that she will bring this proposal to the Board of FEU and that she agrees in principle to sell one floor to the Foundation.

 

 V. Assets and Financial Position

 As reported by then FLP President Maria Elena P. Yaptangco in her First Annual Report (2012), the Foundation was incorporated with a total of two million pesos (P2,000,000) as initial funds, contributed by retired Chief Justice Artemio V. Panganiban.  At present, based on the 2017 Audited Financial Report presented before and approved by the Board of Trustees, the Foundation’s total assets reached a sum of seventy million six hundred seventy-nine thousand seven hundred twenty-four pesos (Php70,679,724.00) which includes the value of the PCCI property in Makati.

FLP’s depository bank is Bank of the Philippine Islands (BPI). The funds may be withdrawn only by signature of two of its four authorized signatories, preferably, the President and/or the Treasurer.

Apart from its cash assets, the Foundation is the recipient of copyrights over the “Ageless Passion” musical compositions of Mr. Ryan Cayabyab and lyrics thereto by Mr. Kristian Jeff C. Agustin.


[1] These were—surnames in alphabetical order—(1) Atty. Reynaldo U. Agranzamendez (Dean, University of the Cordilleras College of Law); (2) retired Supreme Court Justice Adolfo S. Azcuna (Chancellor, PhilJA); (3) Atty. Andres D. Bautista (Dean (until 2014), Far Eastern University Institute of Law, now Commission on Elections [COMELEC] Chairman); (4) Atty. Sedfrey M. Candelaria (Dean, Ateneo de Manila School of Law); (5) Atty. Danilo L. Concepcion (Dean, University of the Philippines College of Law, now President of the University of the Philippines System); (6) Atty. Jose Manuel I. Diokno (Dean, De La Salle University College of Law); (7) Atty. Nilo T. Divina (Dean, University of Santo Tomas Faculty of Civil Law); (8) Atty. Joan Sarausos-Largo (Dean, University of San Carlos School of Law and Governance); (9) retired Supreme Court Justice Eduardo B. Nachura (Chairman, Arellano University Law Foundation); and (10) Atty. Manuel Quibod (Ateneo de Davao University College of Law). Regrettably, the 10th appointee failed to respond to FLP’s cordial invitation and appointment letter; hence he was eventually and decidedly removed from the list of chair holders.

Wash Sycip, Chito Tagle and the FLP (With Due Respect Column)

By: Chief Justice Artemio V. Panganiban, Chairman of the Board of Trustees, FLP

Column printed in the Philippine Daily Inquirer, October 15, 2017

   

Unknown to many, the business icon Washington SyCip, who passed on last week at 96, cherished a bond with the relatively young (59) archbishop of Manila, Luis Antonio Cardinal “Chito” Tagle.

A mystery and a blessing. Wash whispered to me more than once, “Cardinal Chito Tagle is the most brilliant Catholic I have ever met. He is an intellectual giant, but beyond that, he is humble, prayerful and compassionate. He truly loves and cares for the poor and underprivileged. I fervently hope he will be the next pope, and before that happens, I would become a Catholic so I can affectionately greet him in the Vatican.”

Replying to my SMS advising him of the demise of Wash, the prelate (who was then in Spain) texted back: “I’ll pray for him and his family… Mr. Wash was my ‘quiet’ and ‘hidden’ friend. It remains a mystery but a blessing why he showed me such fondness and respect.”

I do not know if Wash actually converted to Catholicism. But whether he did or not, may I invite my readers, whether Catholic or not, to join me in praying for his eternal repose?

Distant star. During my over 11 years in the Supreme Court and my 35 years as a humble practicing lawyer prior to that, I did not have the privilege of meeting Wash. But I viewed him as a distant star.

From afar, I admired his outstanding career as a certified public accountant, an educator (he cofounded the AIM, the Asian Institute of Management where my wife taught for 36 years till her retirement in 2009), and a much-sought-after guru of the major conglomerates in the country.

However, after I retired from the Court in December 2006, I had the good fortune of forging a close personal friendship with him. We met very often as fellow independent directors/advisers of PLDT, Metro Pacific Investments Corp., First Philippine Holdings Corp., Jollibee Foods Corp., Asian Terminals Inc., and Metropolitan Bank, and as fellow trustees/advisers of the Tan Yan Kee Foundation, Metrobank Foundation, Johann Strauss Society and Foundation for Liberty and Prosperity (FLP).

In between the meetings and activities of these corporations and foundations, we privately percolated ideas on the overriding principles and values to make democracy flourish and on the enduring practices and pursuits to equitably spread wealth and prosperity to our people.

Ice of Wash. He was a man of many-splendored talents and quests. I have space to cite only three: integrity, competence and education. I call them the “Ice of Wash.”

He practiced integrity, and not merely in terms of honesty in dealing with others; it meant intellectual decency and a deep sense of personal honor that transcended public acclaim or recognition, as well as the moral courage to stand for what is right and proper, even when no one else did.

Moreover, to him integrity included active fairness, a sense of giving back more than what is received. He expected his scholars (thousands of them) to give back what was granted them after they finished their studies and became professionals so as to multiply the benefits to new entrants.

He demanded competence and excellence from himself and from all who worked for him and for the organizations he represented. In spite of his advanced age, occasional illness, jet lag, sleeplessness and disabilities, he diligently and promptly attended all meetings of the companies he served.

To him there were no short cuts, no mid-merits, no half-bakes, no compromise with mediocrity, no tolerance for patchiness. He wanted and expected only the best: in Filipino, “Hindi puede ang puede na.”

Finally, he had a consuming passion for education. His range was broad and extensive—from the Synergeia Foundation (of which he was “chairman for life”) in basic schooling to the AIM in graduate work. He viewed education as the poor’s passage to prosperity.

I am glad and grateful that though minor compared to AIM and Synergeia, our endeavors in the FLP merited the same passion from Wash. Though not a lawyer, he actively helped in launching the FLP’s three educational projects: 15 professorial chairs in as many law schools, 21 full scholarships (tuition, books and monthly stipend) for law students, and a unique dissertation contest also for law students.

6th Annual Report

 (January 1, 2016 to December 31, 2016)

I. Introduction

            Officially established on October 27, 2011, the Foundation for Liberty and Prosperity is now on its fourth year of operation. Ably led by its Board of Trustees—namely Chief Justice (CJ) Artemio V. Panganiban, CJ Hilario G. Davide Jr., Washington Z. Sycip, Edilberto C. De Jesus, Elenita C. Panganiban, Maria Theresa P. Mañalac, Jennifer J. Manalili, Evelyn T. Dumdum and Joel Emerson J. Gregorio—the FLP has steadily gained recognition from its stakeholders and partners through its various programs, projects and activities.

The Foundation’s vision is a society that fully appreciates the necessity of “Liberty & Prosperity” and their essential interdependence. It underscores FLP’s core philosophy, that liberty and prosperity are mutually inclusive. The Foundation’s mission is to educate the people regarding this fundamental and essential interrelation between liberty and prosperity by initiating, maintaining, organizing, and supporting projects aimed at promoting, educating, training, developing, assisting and protecting liberty and prosperity under the rule of law. This year, FLP is implementing programs focused on two (2) key areas of development: “legal and scholarly education” and “information dissemination and philosophy propagation.”

 

FLP Officers

The FLP continues to serve its purpose through its FLP officers, namely CJ Artemio V. Panganiban (Chairman of the Board), Evelyn T. Dumdum (President), Rebecca G. Felix (Treasurer), Joel Emerson J. Gregorio (Corporate Secretary) and Martin Angelo L. Esguerra (Executive Director and Chief Operations Officer). In addition, the chairs of the various standing committees are: CJ Artemio V. Panganiban (Executive Committee), Washington Z. Sycip (Finance Committee), CJ Hilario G. Davide Jr. (Governance Committee), and Edilberto C. De Jesus (Education Committee).

The first batch of officers were CJ Artemio V. Panganiban, Chairman of the Board, Maria Elena P. Yaptangco, President; Evelyn T. Dumdum, Executive Vice President; Elenita C. Panganiban, Treasurer; and Joel Emerson J. Gregorio, Corporate Secretary.

 

II. Ongoing Programs and Projects

 

The FLP was founded to perpetuate the core judicial philosophy of then Chief Justice Artemio V. Panganiban—that jurists and lawyers should not only safeguard the liberty of our people but must also nurture their prosperity under the rule of law. In the first three years since its incorporation, FLP focused on the following activities: (1) FLP’s flagship project, the “Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity,” (2) the official FLP Website (www.libpros.com), and (3) the “Liberty & Prosperity Journal,” hitherto an e-newsletter. In 2016, the Foundation launched two new education-centered programs to complement its flagship project: the FLP Dissertation Writing Contest and FLP Legal Scholarship Program.

 

Professorial Chairs Program

As the flagship project of the Foundation, the Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity is being implemented for four years now, following its launch on September 18, 2012 at the Metrobank Auditorium, Makati City. The Metrobank Foundation partnered with the FLP in this endeavor and has so far donated a total of One Million Four Hundred Thousand Pesos (P1,400,000.00) in co-sponsorship of the program.

FLP started with the appointment of nine (9) deans of distinguished law schools and the Chancellor of the Philippine Judicial Academy (PhilJA). The Foundation wanted to encourage educational institutions and law schools to research and propagate the philosophy at the level of the academia (including training of students, professors, lawyers, and judges). The outputs varied in form from traditional lectures, debates, as well as moot court competitions. The written lectures from the chair holders have been uploaded to the FLP website and published in the Liberty & Prosperity e-newsletter. These shall be compiled and will eventually be published in a book and/or in other modes of communications under the information, education and communication projects of FLP.

The first batch of recipients include the following deans of the top nine (9) law schools in the Philippines, plus a tenth chair in the Philippine Judicial Academy (PhilJA). These were—surnames in alphabetical order—(1) Atty. Reynaldo U. Agranzamendez (Dean, University of the Cordilleras College of Law); (2) retired Supreme Court Justice Adolfo S. Azcuna (Chancellor, PhilJA); (3) Atty. Andres D. Bautista (Dean, Far Eastern University Institute of Law); (4) Atty. Sedfrey M. Candelaria (Dean, Ateneo de Manila School of Law); (5) Atty. Danilo L. Concepcion (Dean, University of the Philippines College of Law); (6) Atty. Jose Manuel I. Diokno (Dean, De La Salle University College of Law); (7) Atty. Nilo T. Divina (Dean, University of Santo Tomas Faculty of Civil Law); (8) Atty. Joan Sarausos-Largo (Dean, University of San Carlos School of Law and Governance); (9) retired Supreme Court Justice Eduardo B. Nachura (Chairman, Arellano University Law Foundation); and (10) Atty. Manuel Quibod (Ateneo de Davao University College of Law). Regrettably, the 10th appointee failed to respond to FLP’s cordial invitation and appointment letter; hence he was eventually and decidedly removed from the list of chair holders.

Two (2) chair holders were renewed, namely (1) Atty. Sedfrey M. Candelaria (Dean, Ateneo de Manila School of Law); and (2) Atty. Joan Sarausos-Largo (Dean, University of San Carlos School of Law and Governance). FLP recently included Atty. Melencio S. Sta. Maria, Dean of the Far Eastern University – Makati to the roster of distinguished lecturers.

Notably, Dean Sedfrey M. Candelaria delivered his commitment in full. The Ateneo Law School Dean delivered his second public lecture entitled “Comparative Analysis of the Memorandum of Agreement on Ancestral Domain and the Framework Agreement on the Bangsamoro” on November 29, 2013. Thereafter, he organized an international moot court competition at the Ateneo Justitia Hall from March 4 to 5, 2014.

Marking the second anniversary of the Professorial Chairs on Liberty and Prosperity (September 18, 2014), Deans Joan Sarausos-Largo and Mikhail Lee L. Maxino delivered their public lectures in September and November 2014, in Cebu City and Dumaguete City, respectively.

This year, Dean Sarausos-Largo of USC delivered a lecture on “Charting a Path to a Relevant and Responsive Legal Education in the Philippines: A Draft Law Curriculum for the 21st Century Filipino Lawyer”, proposing a revision of the existing law curriculum and legal training to make it more responsive to the challenges on both liberty and prosperity. The lecture was held on December 9, 2016 in Cebu.

In summary, the table below shows the output of each chair holder as well as recent updates, including future deliverables:

 

CHAIR HOLDER OUTPUT STIPEND RECEIVED Updates
1 Reynaldo Agranzamendez (Cordilleras)

 

1 lecture (October 2013)

 

PhP 100,000

 

1 lecture pending

 

2 J. Adolfo Azcuna (PhilJA)

 

1 lecture (April 2013)

 

PhP 100,000

 

1 lecture pending

 

3 Andres Bautista (FEU)

 

1 lecture (February 2014)

 

PhP 100,000

 

Will deliver 1 lecture on Bar Reforms

 

4 Sedfrey Candelaria (Ateneo)

 

2 lectures, 2 debates (September 2012, March & Nov 2013, March 2014)

 

PhP 400,000

 

Fully complied, eligible for 3rd batch of appointments

 

5 Danilo Concepcion (UP)

 

NONE

 

0

 

Will deliver a lecture on the integration of the practice of law within ASEAN framework

 

6 Manuel Diokno (La Salle)

 

1 lecture
(November 2012)
PhP 100,000

 

Will deliver 1 lecture with focus on economic rights

 

7 Nilo Divina (UST)

 

1 lecture (February 2014)

 

PhP 100,000

 

1 lecture pending

 

8 Joan Sarausos-Largo
(San Carlos Cebu)
3 lectures, 1 debate
(March & August 2013, September 2014, December 2016)
PhP 400,000

 

Fully complied

 

9 Melencio S. Sta. Maria (FEU Makati)

 

NONE

 

0

 

Will deliver 1 output with constitution and the media and/or economics of scale in marital property relationship as proposed topics

 

10 Mikhail Lee L. Maxino (Siliman University)

 

1 lecture (November 2014)

 

PhP100,000

 

 

FLP Dissertation Writing Contest

The FLP Dissertation Contest is a five-year program which aims to augment the Foundation’s flagship project by incorporating new, dynamic and perhaps more profound input to the body of works discussing FLP’s core philosophy. We believe that the fresh insight and unique perspective of law students will provide bold, novel and innovative avenues for the development of the Foundation’s tenets.

The contest will be open to all law schools nationwide. Each school may submit a maximum of three (3) entries, with one (1) entry per student. Participants will be junior and senior law students (3rd and 4th year). FLP will look for the best thesis/dissertation (or its equivalent in law schools not offering the Juris Doctor program) that espouses the philosophy of liberty and prosperity under the rule of law. An entry must be certified to have gone through the process of a thesis/dissertation or a procedure similar thereto and that is of thesis/dissertation type and quality.

The Foundation will also tap its roster of professorial chair holders, among others, to create the Panel of Judges who will choose the winning entries and conduct dialogues where the winners shall discuss, argue and debate their submissions, engendering a deeper understanding of the core philosophy of the Foundation.  These discourses on their work with the Panel of Judges will foment the kind of analysis that will contribute to the evolution, development and enrichment of the Foundation’s philosophy.  FLP will also constitute a Dissertation Contest Committee to assist the Panel of Judges.

The committee shall choose a maximum of twenty (20) entries, which will already receive Twenty Thousand Pesos (PhP 20,000). Thereafter, the Panel of Judges composed of five (5) members shall come up with a shortlist of ten (10) entries from which five (5) winners will be chosen: 1st place will receive Three Hundred Thousand Pesos (PhP 300,000), 2nd place Two Hundred Thousand Pesos (PhP 200,000) and three (3) honorable mentions each receiving One Hundred Thousand Pesos (PhP 100,000). The authors on the shortlist will then each submit a new entry, either expanding on their respective original entries or covering a completely new subject.

The Foundation has already announced the Contest Guidelines in its website and the Chairman’s column in the Philippine Daily Inquirer. These, together with flyers and posters were also disseminated through the deans of law schools in cooperation with the Philippine Association of Law Schools.

The total estimated cost for the five-year program, including expenses for coordination, stipend for the panel of jurors and other miscellaneous expenses as well as ten percent (10%) to cover inflation, is Twelve Million Two Hundred Ten Thousand Two Hundred Pesos (PhP 12,210,200) broken down in the table below:

 

Item Number Cost Total
1st Place 1 PhP 300,000 PhP 300,000
2nd Place 1 PhP 200,000 PhP 200,000
Honorable Mentions 3 PhP 100,000 PhP 300,000
Chosen Entries 20 PhP 20,000 PhP 400,000
Stipend for Judges 5 PhP 100,000 PhP 500,000
Coordination Fees PhP 300,000 PhP 300,000
Total for 1st Year PhP 2,000,000
Total for 2nd Year PhP 2,200,000
Total for 3rd Year PhP 2,420,000
Total for 4th Year PhP 2,662,000
Total for 5th Year PhP 2,928,200
GRAND TOTAL PhP 12,210,200

 

The Ayala Corporation has already agreed to facilitate the provision of funds for this project through its various partners and has committed to FLP the funding for the entire five-year program. They have given Two Million Pesos (PhP 2,000,000) for the first year of the program.

 

FLP Legal Scholarship Program

This is a four-year program. The Foundation is sponsoring a unique, merit-based FLP Scholarship Program. Co-sponsored by the Tan Yan Kee Foundation and also undertaken in cooperation with PALS, it aims to look for the best and the brightest law students in the country. There will be ten (10) scholars for the program and the scholarship is open to those entering their third year as law students. FLP is opening the ten (10) slots to all law schools that have obtained a percentage of passing above the overall percentage of passing for the 2014 bar exams based on the statistical data from the Supreme Court Office of the Bar Confidant. The Foundation will add one more scholar each year for the duration of the program so that eventually, in four years, we will have forty (40) beneficiaries/scholars.

Applicants must submit an essay written in English with a minimum of two thousand (2,000) words and a maximum of three thousand (3,000) words.  The essay must be on the philosophy of the Foundation, expanding on and espousing the precept: safeguarding of liberty and nurturing of prosperity under the rule of law, and how he/she will apply the same in his/her legal career.

There will be an interview to be conducted by the FLP Panel of Judges who will be given full discretion in the conduct of the said interview.  The Panel shall consider the candidate’s ability to demonstrate clearly, logically and concisely what he/she has done and intends to do to propagate and espouse the philosophy of liberty and prosperity under the rule of law.  Although the scholarship is merit based, the less privileged shall be preferred in case of a tie between two nominees.  Selection shall be final when affirmed by the FLP.

Awardees must agree to the terms and conditions of the FLP Scholarship Program, including but not limited to, the requirement to provide volunteer services for the Foundation as well as giving back to the FLP Scholarship Program to ensure its sustainability such as teaching law subjects that espouse the philosophy of liberty and prosperity, developing a concept/program along the philosophy of the FLP and commitment to mentoring other law students, subject to institutional arrangements with partner law schools.  Awardees must likewise agree to enter into a formal commitment agreement with FLP and the pertinent academic institution for this purpose.

Each of the ten FLP Scholarship is a monetary scholarship award of PhP200,000 of which a maximum of PhP100,000 shall be for tuition fee and PhP20,000 for book allowance.  The amounts for the tuition fee and the book allowance will be transferred to the account of the student created especially for this purpose and in tranches corresponding to the schedule of payment for tuition fee per semester of the pertinent academic institution.  The remaining PhP80,000.00 for stipend shall be deposited monthly throughout the academic year to the same account created for this purpose.  Only such amount needed shall be deposited.  If the tuition fee component of the monetary scholarship award is in excess of the awardee’s tuition, the balance will be returned to FLP, which will be used for the scholarship program.  If the awardee is entitled to another scholarship award, he/she will still receive the cash monetary scholarship award to be provided by the FLP.

The Tan Yan Kee Foundation has initially provided Two Million Pesos (PhP 2,000,000) for the first year of the program.  TYK has likewise approved the funding for the second year of implementation of the program and will transmit the funds once FLP secures the required BIR Certification.

The first set of FLP scholars, consisting of eleven (11) third year law students were chosen for the school year 2016-2017.

 

FLP Newsletter

The Foundation published and distributed its e-newsletter “Liberty & Prosperity Journal” by the second quarter of 2013. These were received in PDF format by FLP’s network of VIPs, stakeholders, and academics via email. The ten professorial chair holders likewise received copies of the e-newsletter and promised to disseminate them to their respective law schools for the benefit of students and faculty alike. FLP has so far released eight (8) e-newsletters with Volume 4 Issue 1 (2015) and Volume V Issue 1 (2016) as the most recent issues.
Volume IV features the FLP Annual Report as well as the Chairman’s lecture titled: “ASEAN: Unleashing Entrepreneurial Ingenuity.”  Volume V, on the other hand, contains articles on PCNC’s site visit, FLP’s ongoing programs and projects as well as the Executive Director’s legal article entitled: “Untangling the Dragnet Clause.”

FLP Website

The Foundation’s website (www.libpros.com) has undergone a complete revamp, with major changes in layout as well as scalability. Based on the comments and suggestions of the Chairman, the new website now has a simple, neat and uniform design aesthetic that remains consistent whatever device is being used to view or access it – either desktop, tablet or smartphone. It also features front and center the two (2) new programs being undertaken by the Foundation: the FLP Dissertation Contest and the FLP Scholarship Program. The guidelines and forms for these programs have also been uploaded and are ready for download by interested participants and the general public. We have also provided a special email address for the Secretariat (secretariat@libpros.com) for coordination and support for these programs. We will continue to work with the site’s administrator, Mr. Kristian Jeff C. Agustin, to further improve and enhance the website.

 

III.   Recent Developments in 2016

Awarding Ceremonies for the FLP Scholarship Program

The Foundation conducted a formal awarding ceremony for the Eleven (11) LibPros Scholars last December 1, 2016 at the new University of the Philippines Campus in Bonifacio Global City (BGC) with Chief Justice Maria Lourdes P.A. Sereno as guest of honor.  The Chairman of the Foundation gave the closing remarks, thanking our co-sponsor, partners and stakeholders as well as the invited guests in attendance.

 

Ageless Passion

The musicale was first staged with seven original songs as part of a concert on December 20, 2011 at the Meralco Theater, during Chief Justice Panganiban’s 75th birthday, where the Chairman publicly announced the nascent beginnings of the Foundation.  Five years after, on December 20, 2016 – in celebration of CJ Panganiban’s 80th birthday – the Foundation once again sponsored Ageless Passion held at the new Maybank Performing Arts Theater, in BGC.  The musicale featured a full-length 18-song libretto penned by Kristian Jeff Cortez Agustin, a promising lyricist and poet (also FLP’s first Executive Secretary), with original music masterfully composed by no less than the internationally acclaimed Maestro Ryan Cayabyab with an all-star cast accompanied by the Manila Symphony Orchestra. (View or download the 2016 Souvenir Program here)

 

FLP Secretariat

With the transfer of the Foundation office to the 3rd Floor, PCCI Corporate Center in Makati from 1203 Acacia Street, Dasmariñas Village, Makati, the Foundation has also hired a secretary and a clerk/driver as part of the secretariat. FLP has likewise executed lease contracts with Baron Travel Corporation and Arpan Air Incorporated, receiving a total monthly rental of PhP 303,032.60, which is being used for administrative and operational expenses.

 

Accreditation with the PCNC

FLP accreditation with the Philippine Council for NGO Certification (PCNC) was up for renewal on June 8, 2016. The FLP Secretariat has submitted the necessary documents to PCNC and a site visit was conducted on August 23, 2016. The representatives from PCNC went over the documents FLP prepared for their review and conducted interviews with members of the BoT and FLP staff.

 

17th PCNC Annual Assembly

The Foundation participated in the 17th PCNC Annual Assembly on May 24, 2016 at the JY Campos Hall, UNILAB Bayanihan Center, Kapitolyo, Pasig City. As one of the 435 accredited members in good standing, FLP was able to participate in the discussions and vote for the new members of the PCNC Board of Trustees. FLP voted for Ms. Carmen Linda M. Atayde of SM Foundation Inc. and Mr. Augusto P.I. Carpio III of the Aboitiz Foundation Inc. Both won and became the new membes of the board.

 

IV. Future Plans and Direction

            The Foundation plans to implement the following programs and projects within a three to five year program framework:

 

FLP Visual Art Competition

A project proposed by Mr. Kristian Jeff C. Agustin, the Liberty & Prosperity: Images, Figures, Expressions (LIFE) is a visual art competition that aims to make known the Foundation’s philosophy of “liberty and prosperity under the rule of law” in creative ways. It is designed after three well-established and long-running visual art competitions in the Philippines, namely: the DPC-PLDT Visual Art Competition, the Metrobank Art & Design Excellence Competition and the Shell National Students Art Competition.

By launching a new visual art competition, the FLP can make itself more relevant to the country’s art and culture scene, which is very instrumental in capturing or defining the “zeitgeist” of a particular society. For instance, today’s zeitgeist of “Filipino Democracy” has eventually latched on to the consciousness and culture of Filipinos by way of the media’s constant revisiting of the EDSA People Power Revolution and representations of the spirit of “Filipino-ness” (especially by means of evocative images and stories). Hence, to better promote its vision of “a society that safeguards liberty and nurtures prosperity under the rule of law” to the general public, the FLP must tap and develop the potential of Filipino artists, designers, and other creative practitioners.

 

Coffee Table Books on the Professorial Lectures and Speeches of CJ Panganiban

FLP also plans to partner with the Metrobank Foundation regarding the publication of two (2) coffee table books: one, a compilation of the lectures and output delivered under the CJ Panganiban Professorial Chair Program; and two, a compilation of selected speeches of CJ Panganiban. Metrobank Foundation agreed in principle to sponsor said coffee table book projects and offered to assist FLP in undertaking the same considering that they have had several similar projects.

 

Support to the Reform Program of the Judiciary and the Ombudsman

In terms of its commitment to reforms, FLP plans to work closely with the SC and the Office of the Ombudsman in establishing a reform program patterned after the SC’s Action Program for Judicial Reform (APJR). The Foundation is planning to once seek the assistance from the World Bank (which provided the funding for the APJR) and other international funding institutions in this endeavor.

 

Legal Education Reform Program

Another avenue as regards reform (as well as education) is FLP’s plan to partner with the Legal Education Board in developing a program to reform the legal education in the Philippines.

 

FLP Museum

The Foundation is looking at establishing an FLP Museum where various memorabilia and important items will be kept and made available for viewing of the public. This will be through a possible purchase of the entire floor of a building in FEU Makati at cost which the Chairman has proposed to the Chairman of FEU to be put up in the land purchased by FEU where the old 6-story Zuellig building is located at the corner of Ayala and Buendia Avenues. The Chairman of FEU said that she will bring this proposal to the Board of FEU and that she agrees in principle to sell one floor to the Foundation.

 

V.  Assets and Financial Position 

            As reported by then FLP President Maria Elena P. Yaptangco in her First Annual Report (2012), the Foundation was incorporated with a total of two million pesos (P2,000,000) as initial funds, contributed by retired Chief Justice Artemio V. Panganiban. Presently, based on the 2016 Audited Financial Report presented before and approved by the Board of Trustees, the Foundation’s total assets reached a sum of Sixty-Seven Million Four Hundred Seventy-Two Thousand Three Hundred Two Pesos (P67,472,302)—which includes the value of the recently purchased PCCI property in Makati.

FLP’s depository bank is Bank of the Philippine Islands (BPI). The funds may be withdrawn only by signature of two of its four authorized signatories, preferably, the President and/or the Treasurer.

Apart from its cash assets, the Foundation is the recipient of copyrights over the “Ageless Passion” musical compositions of Mr. Ryan Cayabyab and lyrics thereto by Mr. Kristian Jeff C. Agustin. Mr. Cayabyab’s professional fees amounting to four hundred thousand pesos (P400,000) were paid for directly by several friends of our Chairman, led by businessman Eduardo Yap. Atty. Joel Emerson J. Gregorio, FLP Corporate Secretary, obtained copyrights of these works from the government.

Consent and Liberty of the Governed under the rule of law

By: Dion Ceazar M. Pascua

San Beda College Manila College of Law

EXECUTIVE SUMMARY

     In these centuries of radical changes against colonial rule happening all over the world, classes have also risen, and populist nationalism had begun to rise.  More importantly, the modernization and renewal of legal and government institutions have taken place.

     It’s important to underscore these developments that led to the institutionalization of democratically-made laws.  These laws must always be understood as made in the context and consent of the governed.  While indeed republicanism is the only practicable and modern way to initiate and govern democracy, its main disadvantage lies in its shortcomings in representing the entirety of the governed. 

     But of course, this is understandable, considering that informed consent has become a privilege rather than an absolute right; only some people are capable of participating politically because of their upbringing, education, and social background which enable them to acquire enough knowledge to form a well-grounded belief in politics.

     Let us take this into the Filipino context.  Informed consent and political activity on the part of Filipinos is a societal problem—majority of Filipinos do not know how government works and how it functions to an extent to give them enough to give an informed consent on things. Instead, the same Filipinos have become more focused on their individual lives rather than their lives as relative to the government—as citizens of the Philippines.  And there is nothing wrong with this, actually.  We would rather engage in more pleasant matters than the complexities of politics, drama, and the occasional scandals.  We would rather plough the fields and fish in the oceans to bring bread to the table than engage in discourse that would use too much time that could be used on more important matters. 

     As the old legal maxim goes: ‘your freedom ends where mine begins;’ if there is no respect to other liberties, there wouldn’t be liberty for all.  As citizens we must always recognize the independence of others.  Laws must always be made in consideration of being the middle-ground of liberties among citizens—to construct the limitations of private and personal rights to the benefit of all.  While it cannot be an insurer of liberties, laws must always strive and maximize the protection and the furtherance of rights.  Besides that fact, laws must always be forward-thinking and open-minded, always embracing change, and always inclusive of new concepts.  At the least, laws must reflect verified scientific and rational findings beyond the scope of what has been established and constructed.  In other words, laws must be the exponent of morality and good policy.

     Today, the Philippines is ideally a government of laws, and not of men, as it follows strictly its codes of laws to the letter, owing to its nature as a primarily civil law legal system.  Recent events, particularly pertaining to the widespread proliferation of extrajudicial killings, would show that this isn’t the case, and rights have been greatly miscarried and deprived.  We must never compromise our belief in the laws to the whims of the cries for vengeance, no matter how righteous those calls may be.  Due process is an object of liberty; and liberty is an object of social justice.  Most of all, social justice creates and broadens opportunities and rights for people who will engender a better future for the state.  The laws of the state may not be perfect, and often times, unfair, but an active citizenry will always fulfil the intent and letter of the laws through their unvitiated and informed consent, regardless of the number of persons with self-serving agendas.  The law equally requires our participation and consent to it, as well as demanding us to effect and air out our political concerns and grievances.  We are often daunted with other affairs that concern our personal lives, but we must never forget our roles as citizens of the Republic.

          WE ARE A GOVERNMENT of laws, and not of men, so said John Adams, one of the Founding Fathers of the United States of America. It was during this time that he, with the other Founding Fathers of the US, decided to run against the oppressive British Monarchy of King George the Third, and establish the first ever constitutional democratic republic in the world—the first of its kind.

          The American Revolutionary War is a classic example of a struggle versus foreign colonialism, and, as a result, the US government was born—embodying the principles of democracy, republicanism, separation and delegation of powers, and civil service, that have been developed through history from the birth of the Roman Republic, to the Italian city-states and merchant republics, and to the codification and institutionalization of common law doctrine of the United Kingdom.

          It also brought a new movement—a movement against the old world order of feudalism and aristocracy, which directly inspired the French Revolution and the subsequent Latin American Revolutions against Spain, and eventually, the Philippine Revolution.

          Adams’s quote then on became the hallmark of democratic institutions that followed—men then knew that it was more fair and righteous to create a state of laws than follow the absolute rule of monarchs, dictators and despots. From then on, people have become united under governance of content rather than of absolute rule. As English statesman John Milton once wrote:

“The power of kings and magistrates is nothing else, but what is only derivative, transferred and committed to them in trust from the people, to the common good of them all, in whom the power yet remains fundamentally, and cannot be taken from them, without a violation of their natural birthright.”

          Further into this development, rights have been defined, standardized; lawyers, paralegals and notaries have become more common professions, and societies have been transformed from being societies of serfdom patronage into societies of liberalism and individualism.

          In these centuries of radical changes against colonial rule happening all over the world, class’s havealso raised, and populist nationalism had begun to rise. More importantly, the modernization and renewal of legal and government institutions have taken place.

          It’s important to underscore these developments that led to the institutionalization of democratically-made laws. These laws, the subject and context of today’s studies in law, must always be understood as made in the context and consent of the governed. While indeed republicanism is the only practicable and modern way to initiate and govern democracy, its main disadvantage lies in its shortcomings in representing the entirety of the governed.

A government by consent

          But of course, this is understandable, considering that informed consent has become a privilege rather than an absolute right; only some people are capable of participating politically because of their upbringing, education, and social background which enable them to acquire enough knowledge to form a well-grounded belief in politics. While some are inherently disabled—the differently abled or the mentally disturbed; or, if not inherently disabled, the unwilling—the apolitical, the apathetic, and the misinformed. These are some individuals who are deprived of consent for laws, but are no less than the other governed.

          Let us take this into the Filipino context. Informed consent and political activity on the part of Filipinos is a societal problem—majority of Filipinos do not know how government works and how it functions to an extent to give them enough to give an informed consent on things. This consent is often manifested in voting. Instead, the same Filipinos have becomemore focused on their individual lives rather than their lives as relative to the government—as citizens of the Philippines. And there is nothing wrong with this, actually. We would rather engage in more pleasant matters than the complexities of politics, drama, and the occasional scandals. We would rather plough the fields and fish in the oceans to bring bread to the table than engage in discourse that would use too much time that could be used on more important matters.

          As an agricultural and working people, Filipinos are short-term oriented, or subsistence-oriented, and voting, which should be a fair avenue for Filipinos of every class to vent their political will, becomes an avenue to justify and complement these short-term or subsistence-oriented goals. In other words, politics and governance are viewed only to serve citizens, not as a participatory endeavor.

          This system is especially vulnerable to corruption, which is the case happening in the country. This is also used by people to politicize their platforms, which will easily gain traction on incomplete consent. While again, this is not a problem, it becomes as such when a politician uses this weakness to gain the favor of the electorate without protest, giving him an unbridled leverage on political matters, including using it for his own gain and agendas. As such, consent is vitiated; there is no expression of the fullness of liberty and rights.

          Why is informed consent important? In today’s libertarian and democratic institutions, consent is the main currency of legislation and public service—laws are made with the consent of the people through their delegated and democratically-elected officials. As discussed before, this consent may be vitiated not by choice, but by necessity from societal factors and this weakness may be taken advantage of by self-serving agendas in the bureaucracy. Also, avenues to express political consent are often times not taken seriously by the electorate, who would rather have a political system for their needs not as a citizen of the government, but as a private individual. Laws are made for the benefit of its subjects—the state; but it doesn’t only stop at to create and define the state, but to set the state in its course to betterment and an ideal destination—this is often enshrined in the state’s constitution.

          But what composes of this ‘ideal destination?’ It is understood that modern laws are practicable to an extent that they recognize the inequalities, dilemmas and lacks in society, which the same affirm, and which they aim to reduce or alleviate. Laws are geared towards the achievement of social justice and equity, as well as prosperity, but this concept, as always, is subject to the different factors that constitute the individual’s concept of politics.

Social justice

          The conversation of Socrates with his sophist friends in The Republic by Plato, defined justice as giving what is due and taking what is undue. He then proceeded to trace the origin of justice, which he and his other friends said came out of fear of persecution of the breach social contracts (either widely practiced or verbal) which were borne out of agreement, consent—and that if one breaches these contracts that have been widely agreed upon, it becomes injustice. Socrates also made mention of an ‘ideal city state’ of which ruled by a ‘Philosopher King,’ in contrast to a king who has gained an ‘education.’ Socrates averred that the overwhelming power of the city state has even breached the privacy of normal citizens—that rights are ruthlessly subordinated to serve the state’s (which is ruled by the ‘educated’ king) needs in war.

          You could say that Socrates was the first ever advocate of human rights. During the Italian renaissance, these political views were then reaffirmed in part by Niccolo Machiavelli. Though Machiavelli, a statist, agreed that there is a need for the ruler to further pursue in the arts of civil matters and war, his main argument in The Prince is that the state must survive through any means possible, preferably through a show of force, even to a point of subjecting its constituents to fear. In either case of Machiavelli and Socrates, it was a view on social justice.

          Fast forward to contemporary times, a more modern definition of social justice is the just relation of a private individual to a society, and how that society provides for its individuals the opportunities for them to flourish in their desires and aspirations of the self. According to Plato however, social justice is when an individual, by virtue, fulfils his assigned or inherited role for the benefit of other individuals in a state. If that were the case, then there is no social justice if an individual extricates himself from society and participates only for his own matters. Under this definition, there is no social justice if laws are made without the full consent and consideration of the rights of the governed.

          Hence we see political activism—human rights, environmental rights, racial minorityrights and indigenous peoples’ rights. The beauty in our constitution is that it has enshrined a bill or rights, as with most current constitutions of other sovereign states, it preserves and reserves the rights of the citizen against the deprivation of life, liberty and property.

          Liberty is another object of social justice. Defined as the right to exercise freedom and free will, liberty, in recent times, have been redefined as the right to good and avoid evil. Every law student, in the first phase of his or her study in law school, is given the concept of liberty and how it relates to due process. As it always been, liberty is more of a political right than a natural one, for if one defines liberty through his own terms, without due consideration of other persons with personal liberties as well, there wouldn’t be liberty to begin with.

Liberty to do good and avoid evil

          As the old legal maxim goes: ‘your freedom ends where mine begins;’ if there is no respect to other liberties, there wouldn’t be liberty for all. As citizens we must always recognize the independence of others. Laws must always be made in consideration of being the middle-ground of liberties among citizens—to construct the limitations of private and personal rights to the benefit of all. While it cannot be an insurer of liberties, laws must always strive and maximize the protection and the furtherance of rights. Besides that fact, laws must always be forward-thinking and open-minded, always embracing change, and always inclusive of new concepts. At the least, laws must reflect verified scientific and rational findings beyond the scope of what has been established and constructed. In other words, laws must be the exponent of morality and good policy. This has been especially true in today’s political practice—what is frowned upon before may be acceptable today, for example, witchcraft used to be severely punished in the United States, homosexuality and queerness was viewed as a mental illness before, racial segregation also used to be legal, and the recreational use of cannabis used to be illegal.

          It therefore follows that if properly-made and forward-thinking laws made are diligently followed by its citizens, a more open, prosperous and intelligent society becomes more manifest.

          Today, the Philippines is ideally a government of laws, and not of men, as it follows strictly its codes of laws to the letter, owing to its nature as a primarily civil law legal system. Recent events, particularly pertaining to the widespread proliferation of extrajudicial killings, would show that this isn’t the case, and rights have been greatly miscarried and deprived, especially for the suspects of the extra-judicial killings on their rights to due process. As law students, we must never compromise our belief in the laws to the whims of the cries for vengeance, no matter how righteous those calls may be. Due process is an object of liberty, and, as discussed, liberty is an object of social justice. Most of all, social justice creates and broadens opportunities and rights for people who will engender a better future for the state. The laws of the state may not be perfect, and often times, unfair, but an active citizenry will always fulfil the intent and letter of the laws through their unvitiated and informed consent, regardless of the number of persons with self-serving agendas. The law equally requires our participation and consent to it, as well as demanding us to effect and air out our political concerns and grievances. We are often daunted with other affairs that concern our personal lives, but we must never forget our roles as citizens of the Republic.

Liberty from Arbitrariness and Prosperity from Judicial Stability under the Rule of Law

By: Ervin Fredrick H. Dy

University of the Philippines College of Law

 

Executive Summary

 

     What is Rule of Law? Rule of Law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It is exactly this capricious, whimsical, arbitrary or despotic manner equivalent to lack of jurisdiction which is often the subject being assailed at in numerous petitions for certiorari. Rule of Law affords people a certain expectation of fair play and not being simply left to the whims of a person, such as in the case of dictatorship, wherein the ruler is held above law. This was clearly present during the time of martial law under Former President Ferdinand Marcos, who held both executive and legislative powers. At his discretion, he would institute or promulgate numerous presidential decrees penalizing certain acts, the public having no prior notice or knowledge of such laws, in turn being arrested out of the blue for committing an act they didn’t know was illegal. Without Rule of Law, there was wide spread oppression on the part of Marcos, there being rampant summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during his regime. Thus we can say that without Rule of Law there is no liberty.

     But what kind of liberty are we exactly talking about? I respectfully propose that the Rule of Law affords liberty from arbitrariness and oppression.

     As stated earlier, Rule of Law provides people a reasonable expectation of fairness and consistency when the law is applied. When a person files a case before the courts. He would expect that the judge would apply the current existing laws correctly and not arbitrarily or be affected and persuaded to rule otherwise through bribes. The principle of stare decisis is based from this foundation. This principle espouses the doctrine of precedent, which means that if an issue has already been decided the Court should simply adopt its previous ruling. This affords litigants an idea how a case will be decided by the courts given the already long history and experiences available to the courts. Otherwise, without stare decisis, the Court could simply flip flop over and over again in utter disregard of its previous rulings, leading the party litigants to the whims of the Court. Litigation would not then be about applying and interpreting the law, but it would simply be who the judges or justices prefer more.

     Proceeding from liberty from arbitrariness, what is the next logical consequence? It is necessarily the achieving of a stable judicial system. As already pointed out before, wherein people trust the judicial system since there is consistency and whatever judgment they may be rendered with, it is based on sound legal reasoning and not caprice, hence people get what is due to them, that which is just and equitable. Having a stable legal system is a crucial aspect of attaining prosperity.

     Prosperity is the state of flourishing, thriving, good fortune or successful social status.  One way this can be achieved is through investments and ventures. As a potential investor, one would survey the countries wherein there is lesser risk of bad investments, such as when the government takes control over such assets and refuses to compensate such taking. With a stable legal system, investors would be encouraged to invest in our country because of the minimized risk of arbitrariness on the part of the government. If there is any breach of obligation, injury, or harm suffered by the investor, he is sure to be able to obtain relief and correspondingly receive what is just under a stable legal system. With more investors being enticed to invest in our country, prosperity is then a necessary consequence of the Rule of Law.


“When the Rule of Law disappears, we are ruled by the whims of men.”

Tiffany Madison

 

        What is Rule of Law? Rule of Law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It is exactly this capricious, whimsical, arbitrary or despotic manner equivalent to lack of jurisdiction which is often the subject being assailed at in numerous petitions for certiorari. Basically, Rule of Law affords people a certain expectation of fair play and not being simply left to the whims of a person, such as in the case of dictatorship, wherein the ruler is held above law. This was clearly present during the time of martial law under Former President Ferdinand Marcos, who held both executive and legislative powers. At his discretion, he would institute or promulgate numerous presidential decrees penalizing certain acts, the public having no prior notice or knowledge of such laws, in turn being arrested out of the blue for committing an act they didn’t know was illegal. This was exactly the subject being challenged of in the landmark case of Tañada vs. Tuvera, wherein the publication requirement for any rule was held by the Supreme Court to be mandatory, what may be provided by law was merely the number of days after publication before it takes effectivity. Without Rule of Law, there was wide spread oppression on the part of Marcos, who has already been recognized as a tyrant under our laws such as Republic Act 10368 or the “Human Rights Victims Reparation and Recognition Act of 2013”, wherein the State recognizes the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during his regime. Thus we can say that without Rule of Law there is no liberty.

        But what kind of liberty are we exactly talking about? Is it merely physical liberty, that is one is not incarcerated? Or does it pertain to liberty of movement, wherein one can freely move to and fro? Or is it liberty of choice, being free to choose whatever gender preference one has or the person who one wants to marry? I respectfully propose that the Rule of Law affords liberty on two fronts based on its definition: namely liberty from arbitrariness and oppression on the part of the subjects of law or the governed, and liberty from corruption on the part of the law maker or the governor.

        As stated earlier, Rule of Law provides people a reasonable expectation of fairness and consistency when the law is applied. When one person is caught for over speeding, he would not complain against the traffic enforcer arguing as to why he was singled out. He would expect that each and every violator of traffic regulations would be apprehended as well as far as practicable. The same is true when a person files a case before the courts. He would expect that the judge would apply the current existing laws correctly and not arbitrarily or be affected and persuaded to rule otherwise through bribes. The principle of stare decisis is based from this foundation. This principle espouses the doctrine of precedent, which means that if an issue has already been decided the Court should simply adopt its previous ruling. This affords litigants an idea how a case will be decided by the courts given the already long history and experiences available to the courts. Otherwise, without stare decisis, the Court could simply flip flop over and over again in utter disregard of its previous rulings, leading the party litigants to the whims of the Court. Litigation would not then be about applying and interpreting the law, but it would simply be who the judges or justices prefer more.

        Now, on the part of the law maker or governor, why is it that Rule of Law will provide liberty from corruption? To explain this, allow me to quote the motto of my beloved fraternity, the Alpha Phi Beta Fraternity, of which I am a proud member of: “We shall not be saved without wisdom, for knowledge is power, but only wisdom is liberty.”

        Our motto starts with the phrase “We shall not be saved”, depicting the current scenario we are faced with that “We”, as humans, are in need of being saved. Are our lives in physical danger? What do we need saving from? This is answered by the following phrase of “for knowledge is power, but only wisdom is liberty.” The fraternity recognizes the importance of knowledge in that it is a source of power. You can use such knowledge to convince other people to do things they would not normally do, either because you are incredibly convincing and credible with such knowledge, or the fact that the knowledge itself is used to coerce another person such as in the case of blackmail, wherein private information about a person is used to control his actions. Now power is merely a tool which can help a person achieve what he wants, to help him attain his goals. It can be used for good or even bad purposes, as in the case of Former President Marcos, who although is undeniably brilliant in himself, as he was a Bar Topnotcher among others, abused his power and used it for his personal gain, to the detriment of the public. As Lord John Emerich Edward Dalberg Acton said: “Absolute power corrupts absolutely.” With unrestricted power, one can easily be corrupted by it, hence the notion that humans need saving, specifically saving from the problem of corruption of power. Now what is the answer to this problem of corruption? The motto provides it to be only wisdom. Wisdom, simply put, is the ability to discern what is right from what is wrong, and choosing to do the right thing. With wisdom, one’s use of power is tempered and no longer prone to abuse. With wisdom, one can attain liberty – liberty from corruption of power. Wisdom is the central theme of the fraternity with the end goal of attaining liberty. As applied to Rule of Law, when the public official knows and recognizes the Rule of Law, that is in order to be right his decisions must be reasonable and not arbitrary, he will not then succumb to the temptations of power and be corrupted by it.

        Proceeding from liberty from arbitrariness, what is the next logical consequence? It is necessarily the achieving of a stable judicial system. As already pointed out before, wherein people trust the judicial system since there is consistency and whatever judgment they may be rendered with, it is based on sound legal reasoning and not caprice, hence people get what is due to them, that which is just and equitable. Having a stable legal system is a crucial aspect of attaining prosperity.

        Prosperity is the state of flourishing, thriving, good fortune or successful social status.  One way this can be achieved is through investments and ventures. As a potential investor, one would survey the countries wherein there is lesser risk of bad investments, such as when the government takes control over such assets and refuses to compensate such taking. With a stable legal system, investors would be encouraged to invest in our country because of the minimized risk of arbitrariness on the part of the government. If there is any breach of obligation, injury, or harm suffered by the investor, he is sure to be able to obtain relief and correspondingly receive what is just under a stable legal system. With more investors being enticed to invest in our country, prosperity is then a necessary consequence of the Rule of Law.

        Understanding the philosophy of liberty and prosperity under the Rule of Law, how can I then aim to promote this as a law student and in the future in my legal career? As a student, I am currently espousing this philosophy as a member of the Alpha Phi Beta Fraternity among others. As stated earlier, the central theme of our fraternity is wisdom with the end goal of attaining liberty. As such when looking for potential recruits to our fraternity, we orient them on our goals and how to achieve them, such essentially is an information dissemination project, better if the person is actually recruited and joins us in our worthy cause. Concurrent with recruitment as a method of disseminating our views and philosophies, the fraternity is also active in numerous projects. One of the pillars of the fraternity is academics. As explained before, the fraternity recognizes the importance of knowledge in that it is a source of power. If one has great academic standing, he tends to be more credible in the eyes of others. This in fact was true when I participated as a speaker just recently on September 15 in a talk titled “A Look into Law”, organized by the UP-NCPAG Student Council for those students interested to take up law. I was invited to give an inspirational talk to motivate the students to pursue law due to my outstanding academic background, graduating Magna Cum Laude in BS Geodetic Engineering and currently top 5 of our batch and a member of the Order of the Purple Feather, the honor society at UP College of Law. In my speech I talked about how law is merely a tool that can be used to attain a specific objective or purpose, in that we should not be corrupted by power and remember that no one is above the law, hence attain liberty from corruption. Another pillar of the fraternity is forensics and debate. Just this past three weeks, I participated and won the championship in the 29th Annual Pi Sigma Open Debate Tournament, which is the longest running open debate tournament in Southeast Asia. The debate tournament is aimed to promote awareness and critical thinking on various issues that have affected Philippine society. Participants came from different schools such as San Beda College of Law, Arellano University School of Law, Lyceum of the Philippines University. Participants from UP came from College of Engineering, School of Library and Information Studies, UP Debate Society, and College of Law. On our elimination matchup with the UP College of Engineering, the proposition was that PD 910, or the Malampaya Fund law, be amended to allow its use for biodiversity conservation. As the negative side, we argued and highlighted that no matter how good a policy is or how noble the cause of conserving the environment is, under the Rule of Law the amendment proposed must pass the test of constitutionality, otherwise, public funds will be left to the whims and unbridled discretion of the executive, such as was the case when the Supreme Court declared the phrase “as may be hereafter directed by the President” as unconstitutional in the case of Belgica vs. Ochoa or the PDAF case. The importance of Rule of Law was explained not only to the opposing side composed of engineering students, but as well as to the audience members who may not have been familiar with it. Through debate, I can not only inform other people regarding the philosophy of liberty and prosperity under the Rule of Law, I can in fact convince them and help them see and realize the importance of such philosophy.

        In line with the moniker of my fraternity Alpha Phi Beta, which means “Abogado Para sa Bayan” and the fact that I am a product of the UP education system, meaning I am an iskolar ng bayan, my planned line of work is government and public service. Just last June to July I interned at the Office of the Solicitor General to have a taste of what public service is, and I am convinced that I will be pursuing my career there. From the OSG, my next track would be to shift to the Judiciary, either going to the Court of Appeals or the Sandiganbayan. While in the Judiciary, I can promote the philosophy by helping attain judicial stability under the Rule of Law in order to have prosperity. From there I can also conduct lectures, seminars, workshops, trainings, classes, and other forms of instruction to promote the philosophy.

Advocacy and the Art of Small Steps

By: Sean James B. Borja

Ateneo de Manila Law School

 

Executive Summary: Resonance

 

     In the age of millennials, where choice is virtually unlimited, choosing a career path is a quarterlife crisis waiting to happen.  Luckily for me, that was not the case; as early as my junior year in high school, I was fairly set on becoming a lawyer. While I was spared the conundrum of discovering what I wanted to do in life, however, vocational certainty did not mean understanding. I relished in building my hopes and dreams and yet I had a rather rudimentary grasp of what lawyers did. My high school teachers told me that lawyers were all about fighting for justice. But what is justice? What do lawyers fight for?

     Our very own Constitution, in Section 9, Article II, dares to define what justice entails. It 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.” By and large, this constitutional mandate is designed to put the plight of the underprivileged at center stage of governmental policy and to rally the State’s awesome machinery to eliminate inequities in society.  Prosperity for all: that is the goal of social justice.

     Our Constitution recognizes that our nation’s poorest are not free. They are bound by the chains of poverty, and lack the very voice to espouse their own cause. Viewed in this light, our earlier conception of justice becomes a little bit clearer: justice is not just about giving. Justice must also be enabling. In the words of our very own Supreme Court, “Social justice does not champion division of property or equality of economic status; what it and the Constitution do guaranty are equality of opportunity, equality of political rights, equality before the law, equality between values given and received, and equitable sharing of the social and material goods on the basis of efforts exerted in their production.”[1] Justice goes beyond benevolence; it requires, instead, an interplay between prosperity and liberty. One without the other would simply not do.

     How do we go about attaining liberty? I believe we can begin by hearing out stories.

     ‘Little Prince’ Lander Solano is a 9-year-old boy who sells kesong puti to passers-by along Filmore Street, Makati. He negotiates alleys, flyovers, and underpasses every day—all in the company of thieves—just to make a living. Little Prince’s mother also sells kesong puti behind the Cash & Carry along Osmeña Highway, where the family spends the night whenever their goods remain unsold. He is currently out of school, but one day, he said, he will take up engineering and build homes, towers, and dreams.

     Little Prince’s narrative is but one of myriad stories that need to be heard. This is where, I believe, the legal profession and advocacy come in. We claim to live under the rule of law, but without the instrumentalities to bridge the gap between established rights and the underserved, the deep-seated inequalities that we have today will endure for generations to come. Thus, a discussion of Article III of the Constitution is a hifalutin, largely academic exercise unless it can be concretized and brought down to the level of the common tao. And so I believe this is the lawyer’s task: a lawyer must stand at the helm of the law and, through the strength of advocacy and the power his/her voice, turn liberty and prosperity into concrete reality.

     It has been said that the rule of law is the great equalizer and yet, without lawyers, the law is rendered fictional and out of reach, especially for those at the fringes of society. Prosperity and liberty under the rule of law: these are laudable goals but without agency to bridge them to the beneficiaries, a wide chasm will continue to isolate the underserved. And so this is the lawyer’s mission: s/he must learn the power of advocacy—learn to harness it, and become the voice that resonates when others go silent.

[1] Guido v. Rural Progress Administration, G.R. No. L-2089, October 31, 1949.


Never have our people had greater need than today for great lawyers, and for young men and women determined to be great lawyers. Great lawyers—not brilliant lawyers. A scoundrel may be, and often is, brilliant; and the greater the scoundrel, the more brilliant the lawyer. But only a good man can become a great lawyer: For only a man who understands the weaknesses of men because he has conquered them in himself; who has the courage to pursue his ideals though he knows them to be unattainable… only such a man would so command respect that he could persuade and never resort to force.

         — Jose “Ka Pepe” Diokno

        For many people, choosing a career path is a quarterlife crisis waiting to happen. In the age of millennials, where choice is virtually unlimited and people are constantly looking to find and dig into their niche—to be “different” and to stand out from the crowd—“what do you want to do?” has become a sensitive topic to be broached with caution.  Luckily for me, that was not the case; as early as my junior year in high school, I was fairly set on becoming a lawyer. “An ace attorney,” I would beam with pride as I told my family and my closest friends. While I was spared the conundrum of discovering what I wanted to do in life however, vocational certainty did not mean understanding. I relished in building my hopes and dreams like towers and yet I had a rather rudimentary grasp of what lawyers did. My high school teachers told me that lawyers were all about fighting for justice. But what is justice? What do lawyers really fight for?

        Justice is gray area whose contours we can only attempt to define with precision. In broad strokes, justice is the state of fairness under prevailing factual circumstances. Justice, in its most nascent of definitions, means giving to another what is his due. As an ideal and as a virtue, it is something that we have been building towards since the birth of our nation. But what does it demand from us?

        Our very own Constitution, in Section 9, Article II, dares to define what justice entails and 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.” By and large, this constitutional mandate is designed to put the plight of the underprivileged at center stage of governmental policy and to rally the State’s awesome machinery to eliminate inequities in society.  Prosperity for all: that is the goal of social justice, as can be seen in the various efforts that have been led by government.

        Consider the following state measure.

        The Pantawid Pamilyang Pilipino Program (4Ps), our version of the World Bank’s Conditional Cash Transfer Program, was instituted to break the chain of poverty from one generation to the next by investing in the health and education of children from underserved families. In 2010, 800,000 beneficiary households were enrolled in the 4Ps. By 2015, however, this number would balloon to 4,400,000, with a total budget of P62.7 billion for the subsequent year.[1] In fact, the World Bank and the Asian Development Bank praised the program’s success in lessening the burden of those stricken with poverty.

        The 4Ps is but one example of measures geared towards the attainment of social justice. Though the cynic would have much to say about our current array of governmental programs, the facts show that our nation has made significant gains towards the reduction of inequalities. While laudable in their purpose, however, it is equally arguable that the programs that government has spearheaded are essentially remedial, rather than comprehensive, solutions. As such, they run the danger of remaining short-term palliatives. For instance, the 4Ps addresses issues on maternal mortality and child mortality, while leaving out other vulnerable sectors, such as poor senior citizens, the chronically sick, and the out-of-school youth. Indeed, the causes of poverty are highly complex and interlocking, and cannot be addressed without real engagement of the beneficiaries—that is, an attempt to understand the contexts in which they live.

        Many of our socio-economic efforts, albeit a testament to the governmental push for poverty alleviation and prosperity, fail to consider that perhaps inequities, within the Philippine context, are merely symptomatic of an even great problem: the poor have no voice to espouse their own cause. The lack of representation is aggravated by the fact that they cannot even be bothered to do so. When you fall along the margins of society, you have little room for discourse and debate. You are given aid, and you say yes, and then go back to making ends meet. No doubt the poor man on the street may get by, but the inconvenient truth remains: pure beneficence is, more often than not, temporary, and its effects, short-lived at best. Consequently, he remains bound to the cycle of poverty. In many ways, therefore, governmental aid tends to be the balm that soothes the blistering wounds, without breaking the chains that caused them. Indeed, there is no liberty in economic assistance alone—not when it refuses to acknowledge the underlying context of those living on the margins: that they are a disenfranchised lot.

        It is not enough that we Filipinos commiserate with the plight of our underprivileged neighbors. Benevolence, without liberation, is bound to be a self-defeating cause. In this regard, our earlier conception of justice thus becomes a little bit clearer: justice is not just about giving. Justice must also be enabling. In the words of our very own Supreme Court, “Social justice does not champion division of property or equality of economic status; what it and the Constitution do guaranty are equality of opportunity, equality of political rights, equality before the law, equality between values given and received, and equitable sharing of the social and material goods on the basis of efforts exerted in their production.”[2] Justice goes beyond mere charity and requires an interplay of prosperity and liberty. One without the other would simply not do. This begs the question: how do we go about attaining liberty? Which avenues must we explore? To me, I believe we do not have to look far to find an answer.

        We can begin with hearing out stories.

        ‘Little Prince’ Lander Solano is a 9-year-old boy who sells kesong puti to passers-by along Filmore Street, Makati. He negotiates sketchy alleys, flyovers, and underpasses every day—all in the company of thieves—just to make a living. Little Prince’s mother also sells kesong puti behind the Cash & Carry along Osmeña Highway, where the family spends the night whenever their goods remain unsold. He is currently out of school, but one day, he said, he will take up engineering and build homes, towers, and dreams.

        Krizia Mae is a 15-year old girl living in the uplands of General Nakar, Quezon. She is a member of the Dumagat tribe, displaced from her ancestral home to give way to the construction of Kaliwa Dam in Quezon. She wants to become a teacher someday, but finds that the current facilities in her settlement are largely inadequate. Krizia Mae does not understand why her community had to relocate.

        The narratives of Little Prince and Krizia Mae are but two of myriad stories that need to be told to and heard by those in the core of society. Since the persons living on the margins lack the voice to pass on their narratives and to espouse their own cause, however, they require agency. This is where, I believe, the legal profession and advocacy come in. We claim to live under the rule of law, but without the instrumentalities to bridge the gap between established rights and the underserved, the deep-seated inequalities that we have today will endure for generations to come. Thus, a discussion of Article III of the Constitution is a hifalutin, largely academic exercise unless it can be concretized and brought down to the level of the common tao. And so I believe this is the lawyer’s task: a lawyer must stand at the helm of the law and, through the strength of advocacy and the power of persuasion, turn liberty and prosperity into concrete reality.

***

        When I was growing up, I developed the notion that a great lawyer is one who can speak his mind freely, compellingly, and defiantly. A lawyer is, first and foremost, an advocate—one who is called to champion another person’s cause, when the latter cannot himself do so. I was not a particularly big boy, even when I was an adolescent, and so physical strength was never my forte. It comes as no surprise, therefore, that becoming a lawyer spoke to me on many levels. Fiery oratory: it was the weapon of choice that I hoped to brandish skillfully one day.

        Childhood dreams are attractive because they tend to be ideal, while conveniently discounting realities. In my first year of law school, it dawned on me that the path of law meant serious and competitive business. Perhaps it was the professors, who relentlessly tried to catch us out of step. Or my classmates who, even in their free time, discussed their own versions of “What happened in this case?”  Or maybe it was my Type-A personality which made me feel a constant need to compete with myself. In my first year, I developed the notion that law school was all about the paper chase—the slow, grueling crawl to get the best grades possible. Law school was a context where it seemed like being statistically best was what mattered most. It was not so fascinating after all.

        The ‘bad recits’ came in frequently and academics only got harder as we advanced through the semesters. As I became more immersed in law school, however, my disposition towards learning took a gradual turn. I began to consider the possibility that, while grades are all fair and fine, perhaps they are not everything. After all, memorizing codal provisions and facts-issues-held helped me live to see another day, yet they could only do so much to advance my dreams of becoming a great advocate. It was then that I realized I still had not found what I was looking for, and so I decided that greatness probably lied elsewhere.

        As a prospective lawyer, I dream to create ripples in the lives around me. Many of us (myself included) want to create a difference in the world—to fight the good fight, so to speak—and yet, few of us ever know where to even begin. And so we end up feeling stuck in a rut, unable to map out our next move in making an impact out of our lives. As a law student, what concrete action could I have possibly taken to pull down my dreams from the clouds and turn them into a reality here on the ground?

        The answer became apparent when I began my second year of law school.  The Ateneo Society of International Law (ASIL), an organization dedicated to moot court, opened its doors to new recruits. To me, it seemed an obvious choice to learn the ropes of advocacy. While I do not regret joining ASIL, it was nevertheless difficult decision to make because active involvement meant balancing sleepless nights of studying, with equally sleepless nights of training, researching, and writing.

 

I wish I could say that advocacy came naturally and instantly to me, but mine was an uphill, Sysiphic struggle more than anything else. After all the jibber jabber and heartstrings about advocacy, one would reasonably expect that I was proficient at it. I was not.

 

I will not lie: the results from my first competition were a disappointment at best. Despite all efforts, my team failed to advance to the international round; in fact, we did not even make it past the quarterfinals during nationals. To put the nail in the coffin, I discovered post-mortem that my individual scores were absolutely dismal. After all those months of rigorous training, I ended up going home with my tail in between my legs. Needless to say, the experience was a huge blow to my self-esteem, and I considered that maybe I did not have what it takes to make it in the real world.

 

Even as all the cards were stacked against me, however, I willed myself to compete again. For if I decided to pack my bags and go home, then I would have failed not only my dreams and myself. I would have failed Little Prince, who was at Filmore Street with his kesong puti wanting nothing else but to meet his quota; I would have failed Krizia Mae who wanted nothing but to fight for her ancestors’ lands. If I broke under the pressure of not being good enough, then I would have failed the legal profession.

 

We all very much would like to be brilliant at what we do, and yet greatness is never a miracle waiting to happen at any given moment. Greatness, I found, is the art of small steps: it is in the daily struggle that we can take courage, and become better, stronger, and wittier. Trials, tribulations, setbacks, and fiascos are really just tests of character in disguise, for the fire that melts butter is the same fire that hardens steel. True enough, the sun was on my side and in my most recent competition, I prevailed as 3rd Best Speaker in Asia. I dare say (and at risk of flying my own flag), it was a good way to wrap up my first year of mooting.

 

As a law student with two years to go, I believe this is my task: to embrace the grind, and to never stop honing my craft. There is still a lot to learn. For instance, I have yet to master the delicate art of weaving together legal principles and facts to form logical, sound, and compelling arguments. I have yet to master composure and measured speech while under fire from judges because, as I learned, hostility never advances one’s ability to argue. When I finish law school, I would like to hit the ground running. At the same time, I know that it is only through resilience and relentless pursuit that I can net myself the armaments that I would need to espouse liberty and prosperity when I enter “the real world.”

 

It has been said that the rule of law is the great equalizer and yet, without lawyers, the law is rendered fictional and out of reach, especially for those at the fringes of society. Prosperity and liberty under the rule of law: these are laudable goals but without agency to bridge them to the beneficiaries, a wide chasm will continue to isolate the underserved. And so this is the lawyer’s mission: s/he must learn the power of advocacy—learn to harness it, and become the voice that resonates when others go silent.

 

 

[1] Statistics taken from the Department of Social Welfare and Development, at http://pantawid.dswd.gov.ph/ (last accessed October 13, 2016).

[2] Guido v. Rural Progress Administration, G.R. No. L-2089, October 31, 1949.

Safeguarding of Liberty and Nurturing of Prosperity Under the Rule of Law

By: Jose Noel B. Hilario

University of Santo Tomas Faculty of Law

 

Executive Summary

 

     When I was a child I always hear the importance of education. I heard it several times from my parents and from others which at times seem trivial perhaps by reason of my young age. Nonetheless, looking back I thank God for our situation in life for it helped me realize education’s true importance.

     As a boy I already knew that we are not among those fortunate people born with a silver spoon albeit we are not poor. That is why I have been well oriented that I must do well in school and in enriching my knowledge and wisdom. One of the greatest values I learned is that education is a treasure that will never be taken from you. In addition, I knew then that it is also life’s greatest equalizer. That is why I fully submit and adhere to my High school’s philosophy, which espouse that “The Essence of Education is Liberation from the bondage of Ignorance and Poverty”.

      Life reminds me now that I’m blessed to have been liberated from the ills of ignorance which plague some of our fellows by reason of many factors such as lack of opportunity, poverty, lack of support and proper mindset including the seemingly never-ending cycle of poverty which many of our poor brethren cannot seem to unchain. Indeed, experience taught me that with enough support, opportunities, proper conditioning of one’s mind and with sufficient premium to education, liberty and prosperity is not too far.

     Liberty and prosperity goes together in perfect harmony. One cannot perfectly achieve lasting peace and satisfaction without the other for we are by nature interdependent beings. First, is our interdependence with the Creator in which we attribute all our works for His glory and joy. And second, is our interdependence with the fellow beings because I submit, no person and no country could achieve its optimum development and prosperity in isolation.

     Liberty and Prosperity however, were often treated separately and worse in complete disregard or isolation with the other. But who can we blame for that? When even our history suggest that albeit our nature requires us to walk in perfect harmony we would rather choose and be plagued with just either or even none of these essentials, which is in complete disregard of our purpose and faculties’ ability. As we examine some human behaviors we would see people acting as if they are god, although they are no more than men who thinks life revolves by themselves. States as well act with utter superiority, struggling for their quest for power, affirmation and dominance. This might be stretching the point but these behaviors can be attributed due to the failure to observe basic principles of interdependence which failure in practice and continuous denial hereof would result to instability and downfall. An illustration can be shown by what happened in our country during martial law, because of our leader’s desire to “achieve prosperity” thru unwarranted control and by giving a very high premium to stability which at the end of it backfired not just to the President’s leadership and administration but also to our country. Instead of prosperity what we received were revolutions, coup, and the glorious people power, all because of the lack of balance and interdependence of liberty and prosperity. History told us that to a certain extent, our people’s liberty was denied resulting to the natural consequence of an unsatisfied populace who because of such denial of human rights, due process and liberty revolted to be freed from the clutches of dictatorship.

     Often the masses were plundered and do not know it, that is why they need advocates. Hence, as a future lawyer I take the task of minimizing the bondage of poverty and hunger by studying, applying and promoting the rule of law. I hope to inspire those who thought that they could no longer unchain from the shackles of helplessness. Because indeed, liberty and prosperity could turn and shape a person inside the cave into someone society ought them to be.

 


         When I was a child I always hear the importance of education. I heard it several times from my parents and from others which at times seem trivial perhaps by reason of my young age. Like a trivia we often acknowledge its importance without delving deep as to its real significance as long as we know it for a fact. Nonetheless, looking back I thank God for our situation in life for it helped me realize education’s true importance.

          As a boy I already knew that we are not among those fortunate people born with a silver spoon albeit we are not poor. That is why I have been well oriented that I must do well in school and in enriching my knowledge and wisdom. One of the greatest values I learned is that education is a treasure that will never be and cannot be taken from you. In addition, I knew then that it is also life’s greatest equalizer. That is why I fully submit and adhere to my High school’s philosophy, which espouse that “The Essence of Education is Liberation from the bondage of Ignorance and Poverty”. Life reminds me now that I’m blessed to have been liberated from the ills of ignorance which plague some of our fellows by reason of many factors such as lack of opportunity, poverty, lack of support and proper mindset including the seemingly never-ending cycle of poverty which many of our poor brethren cannot seem to unchain. Indeed, experience taught me that with enough support, opportunities, proper conditioning of one’s mind and with sufficient premium to education, liberty and prosperity is not too far.

          Liberty and prosperity goes together in perfect harmony. One cannot perfectly achieve lasting peace and satisfaction without the other. We are by nature interdependent beings. First, is our interdependence with the Creator in which we attribute all our works for His glory and joy, in the hopes of receiving the better end on judgment day. Second, is our interdependence with the fellow beings because I believe that indeed, no person and no country could achieve its optimum development and prosperity in isolation. Liberty and Prosperity however, were often treated separately and worse in complete disregard or isolation with the other. But who can we blame for that? Facts and previous data suggest that albeit our nature requires us to walk in perfect harmony we would rather choose and be plagued with just either or even none of these essentials, which is in complete disregard of our purpose and faculties’ ability. As we examine some human behaviors we would see people acting as if they are god, although they are no more than men in complete ignorance acting that they know everything and could live in isolation. States as well act with utter superiority, struggling for their quest for power, affirmation and dominance. This might be stretching the point but these behaviors can be attributed due to the failure to observe basic principles of interdependencewhich failure in practice and continuous denial hereof would result to instability and downfall. An illustration can be shown by what happened in our country during martial law, because of our leader’s desire to “achieve prosperity” thru unwarranted control and by giving a very high premium to stability which at the end of it backfired not just to the President’s leadership and administration but also to our country. Instead of prosperity what we received are revolutions, coup d’état, and the glorious people power, all because of the lack of balance and interdependence of liberty and prosperity. History told us that to a certain extent, our people’s liberty was denied resulting to the natural consequence of an unsatisfied populace who because of such denial of human rights, due process and liberty revolted to be freed from the clutches of dictatorship.

          As I continue to study law, I realized that our laws are astoundingly beautiful although at the same time I recognize its own shortcomings and limitations.  To some students of law they may say that they want to study the same to liberate others from abuse and denial of rights. While to some they may assert that they wanted to become lawyers simple because they want to earn and enrich themselves. As to the two views, notably, our Code of Professional Responsibility rightfully and logically responds by saying that a lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him (Canon 17). This implies that as a lawyer we are not engaged in a mere money making business, instead we owe fidelity to the real purpose of our profession which is the safeguarding of liberty and nurturing of prosperity under the rule of law. That is why in the words of Chief Justice Panganiban in BURBE v. MAGULTA “Lawyering is not a business; it is a profession in which duty to public service, not money, is the primary consideration”. As lawyers, and responsible citizens of the Republic of the Philippines we hold the duty to the public of safeguarding the rights of our fellow under the rule of law and at the same time to promote their prosperity within the bounds of the law.

          In my day to day journey at the University of Santo Tomas, my usual routine is to first ride the tricycle bound to Hi-top Anonas. From there I will walk to the Light Rail Transit (LRT) to ride the train bound to Legarda. I will then again find myself riding a pedicab or tricycle to eventually reach my destination, UST. In the midst of this daily routine I would always encounter a poor and helpless old woman in the streets of Anonas. My first and honest response is to pray for her and oftentimes, I would also give her whatever kind of food or snack I have inside my bag. As a student, that was the only thing I know I can do for her considering that I may not have the sufficient funds and also because my mindset was always preoccupied with many other things including the difficult law subjects.

          One Friday afternoon, my mom decided to go to Quiapo so I decided to travel along with her since we’re both bound to Manila. In this travel again we encountered the old woman. This time my mom saw what I did.  Notably however mom said jokingly “Panay pambara lang binibigay mo, susunod samahan mo ng tubig naman”. From that simple joke I realized that mama was right. Indeed, I could do more than that. Yes, I might have save the old woman from her hunger during that day but the question remain unanswered, did I really help her on her struggle that way? I may not have because I have failed to give her water or I may have done my part. But, from that simple instance I learned a bunch of things. I realized that sometimes we are too focused on doing good on one aspect. Moreover, when that one aspect is already an act of doing well (like giving some food to the needy) we are often satisfied without delving deeper as to the real need and mourning of our brethren. Indeed we usually respond in a shallow way. In a similar vein, as a law student, I believed before that my calling as a lawyer starts and ends by safeguarding the liberty of my fellow, until I saw a different light.

          As future lawyers, we must safeguard and advocate the value of promoting our brothers and sisters well-being. It is not sufficient that we just act and expect that our real long term outcome would be realized by focusing on only giving food without anything else. That is why according to Chief Justice Panganiban, “Justice and jobs; freedom and food; ethics and economics; democracy and development; nay, liberty and prosperity must always go together; one is useless without the other. The attainment of this dual goal involves an understanding of the intertwining relationship of law and business; and of regulation and entrepreneurship.”

          Just like my experience, the story above also goes well with the majority of our society. Law students and lawyers were often too focused in the single aspect of the value of the rule of law. Many if not few, were conditioned that as long as he safeguards his/her liberty he has done his part. On the other hand, some might have that mindset that as long as they receive compensation, they are at the victorious side of it notwithstanding the fact that they did might have done that the expense of chaining one’s soul for lack of conscience. Liberty without prosperity and vice versa seems to dominate the field. But this cannot be perpetuated. As a lawyer, our culture and DNA must change. A life check must be realized by everyone to understand that our duty does not end by espousing one and leaving the other. Karl Marx historical materialism proves that the pattern of our history is in line with logic. Our history championed well the cry of the society. From the rise of consciousness to liberate from our colonizers; from dictators and from poverty and its repetitive cycle we now move to the value of individual rights. All of which as Marx argues, is the product of the clash of the thesis and anti-thesis. This therefore follows that in order to successfully champion the rights of our people and clients, we must as lawyers and law students start to champion human rights in all of its aspect, lest our duties of safeguarding their rights would become a mere illusion in this modern age. Gone are the days when people struggle just for their liberty   and nothing more because today requires a more dynamic lawyer to safeguard the more dynamic and complex lifestyle of our society.

          So the question goes like this, how would I espouse liberty and prosperity under the rule of law? To answer that, allow me to divide the response in a variety of levels and views.

          First, as a law student, I would have to first study by heart that my duty is to learn in every way that I am studying to promote liberty and prosperity. This basic step I believe would be the foundation of translating it into reality. Consequently, this require transforming myself into an advocate of such philosophy. Currently, after being oriented with the value and realizing that liberty and prosperity must indeed be espoused by each and every lawyer, I am already asking myself in each and every legal question that I face on how I would apply the interdependence of liberty and prosperity under the rule of law. This is manifested by the line of questions in my mind that now already works this way “How can I help solve his/her/their legal problem and at the same time help them live a good life after it, by promoting their prosperity?”

          Indeed, this line of thinking perhaps goes out of the norm as of now because students often only think of answering the question at hand without considering the consequence afterwards, but I submit that with sufficient advocates starting from the grassroots which is inside the law school where future lawyers are being honed, liberty and prosperity under the rule of law would eventually be the name of the field.

          An illustration of the above is when I studied the Intellectual Property Law. Normally, I would study it for the purpose of learning the underlying policy and solution answered by the law, like to promote and protect intellectual creations. But nowadays, I am thinking beyond it like responding beyond. I am now more inclined in asking how that law can help promote the prosperity of the stakeholders. For example, on the part of the intellectual property owners, this law would encourage creativity, invention and innovation because of the reward of exclusive rights to their respective creations that can be used to recover the cost and effort of their production. On the other hand, for the part of the government, if this law would be successful in its goal of protecting Intellectual property rights and at the same time of preventing if not eradicating illegal sale and transaction of any product of imitation of intellectual properties, our government funds allocated for the administrative expenses would be minimized and would be used for some other general welfare purposes. Hence, supporting what I have said earlier that our law is beautiful that in espousing both ways—liberty and prosperity.

          Moreover, with respect to our law on transportation I submit that the current proscription to the so called “Kabit system” must be given teeth by a proposed penalty for its violators. For currently, I believe that the law and jurisprudence only caters to the civil aspect of reimbursing the victims as to the damage it directly cause them without considering the public that is still chilled by the fear of being one of the victims of recklessness, the root of which is the lack of check and responsibilities established among this kabit system users. Again, liberty from fear by the public and prosperity by the assurance or security.

          In addition, as a current understudy of the UST Law Review I hope to someday use the journal as an avenue to espouse the philosophy of the foundation by promoting its importance through the journal that is annually published by the Facult. Hence, as a law student, I believe that my enthusiasm for studying criminal law, political law and civil law must likewise flow with my study of the other fields and branches of law on the premise that in order to fully cater the best solution to our society, it warrants that we produce dynamic lawyers and equip them with the tools of espousing liberty and prosperity.

          Second, as a future lawyer, I will apply the philosophy of safeguarding liberty and the nurturing of prosperity under the rule of law by always considering the philosophy as a goal in every area of my work as a lawyer. In civil cases, since it is our duty as lawyers to first examine the merits of every claim before accepting a case, I must bear in my mind and heart, that liberty and prosperity must be achieved. This follows that if the case clearly warrants an honest direct statement that you better just settle it because your side might be on the losing end, I must do it notwithstanding missing the opportunity of gaining work and money. Indeed, the duty mandated by the Code of Ethics must be practiced and must not be left in the papers dormant. Consequently, by being faithful to this ethical requirement at all times (which I submit would be very difficult for most practitioners) the liberty from an unfounded lawsuit would be really realized and at the same time promoting the prosperity of the stakeholders by saving them from the expenses of lawsuit. On the otherhand, with respect to criminal cases, I would be the guardian of the poor faced by criminal charges who cannot afford the benefits of a real counsel who often do the task merely as a work but not as an advocate. I owe my fidelity to God first and foremost, hence, I will do my best in advocating that the pain of penalty must be carefully thought of and examined before it would be imposed to any individual. Hence, I will assure that their rights will be fully protected within the bounds of the law.

          As an illustration, nowadays, many people were charged by cases related to drugs or the airport related dilemma of the “tanim Bala”. To an extent, some are said to be victims of planting of evidence or false accusations. As a lawyer advocate I would pay extra effort and attention to these victims. Consequently, by acting within the bounds of judicial ethics I would offer myself to represent our poor brethren prejudiced by this kind of societal ill. Indeed, in this way I did not only help liberate our poor fellow from these kinds of idle activities but likewise I would be promoting the fight against corruptions by checking the illegal activities which perhaps involve some of our government officials. In this way I believe that the liberty of our people and the general prosperity of our nation is espoused.

          Consequently, since college I already envisioned myself speaking before the public espousing a worthwhile advocacy. I view myself as a future professor of law. With liberty and prosperity under the rule of law now embedded within my DNA and personal philosophy, I believe that I would be able to spread and share its value to a wider number of people. Moreover, as a professor of law I view this position as a catalyst of change, since as I have mentioned earlier law school serves as the key institution in which future lawyers were molded and trained. Just like how the container shapes the water, our law institutions shapes what kind of future lawyers we would become.

          Often the masses are plundered and do not know it, that is why they need advocates. Hence, as a lawyer I take the task of minimizing the bondage of poverty and hunger by studying, applying and promoting the rule of law. For after all, as in the words of Bastiat, Claude Frederic–“Life, Liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place. – THE LAW (1850).

Making the ocean less salty: An advocacy for a more civilized public discourse

By: Kevin Ken S. Ganchero

Far Eastern University Institute of Law

 

Executive Summary

 

     A common trait of all democratic governments is the recognition that sovereignty resides in the people who directly, or through their duly elected representatives, shape public policy. In these societies, every opinion or dissent ─ is a drop in an ocean of discourse. Ideally, this whole mass of ideas would condense into the best of solutions, laws and actions that the people can collectively pursue. Admittedly, this is a painstaking process.

     Healthy debate is crucial for discourse in this complicated system we call democracy because the laws, policies and even the roster of elected public servants can only be as good as the discourse that put them in place. We are the ones who decide who gets elected, which laws get passed, and which policies are pursued. Before we decide, we always discuss.

      Many, in their rage and frustration from suffering under a government which is perceived to be incompetent and corrupt, and under a society plagued by crimes were blinded from seeing the relevance of the rule of law. Why should we be shackled by rules when our enemies, the criminals, the corrupt, and those who threaten our safety are bound by none? This has become a contagious sentiment among those who openly support extra-judicial killings and making the police less accountable for their operations’ casualties. The idea horrifies reasonable law students but unsurprisingly, it is appealing to people who endured years of crime and corruption. It is a sad reality that when justice is out of reach, frustrated people would put the law in their own hands.

     This problem is a clear effect of a lack of understanding of the law’s purpose. This willful ignorance is even reinforced by the uninformed discourse fueled by rage, disappointment, and frustration. The same emboldens vigilantes and nurtures contempt for the rule of law.

     One way to nip the problem in the bud is through education. Reforms should be made in the current curriculum to encourage critical thinking, social awareness, and understanding of our laws. The solution shouldn’t be confined to government action. Individuals should also chip in and aid in nurturing progressive thinkers who see the bigger picture and who possess the fortitude not to give in to the strong demand for conformity.

     For me, prosperity could only be achieved in a community composed of people who guard their freedoms against arbitrary restrictions from despots and the mob alike. Autocrats may promise prosperity and security but only a free society would guarantee that the mentioned promises would redound to the benefit of all and not just a selected few.

     I intend to promote the foundation’s philosophy by continuing to teach debate, the law, and relevant issues inside and outside our country. I hope that this will create safe spaces for people to speak up and to learn how to cope with criticism. While  speaking in front of others is a frightening experience for most people especially the youth who were raised to respect authority, it is a necessary fear to overcome in order to encourage more participation in public discourse and to keep ignorance in check. This in turn ensures the health of our democracy and our liberty. Despots rise to power when people are silent. Abuses become normal when nobody expresses indignation against them.

 


         I. Discourse as a keystone of democracy.

          Freedom of speech is the “bright and consummate flower of all liberty.”[1] Beyond prose, this phrase is a reminder for all societies that aspire to be truly democratic: that without freedom of speech, there is no liberty. A common trait of all democratic governments is the recognition that sovereignty resides in the people who directly, or through their duly elected representatives, shape public policy. In these societies, every opinion or dissent ─ is a drop in an ocean of discourse. Ideally, this whole mass of ideas would condense into the best of solutions, laws and actions that the people can collectively pursue. Admittedly, this is a painstaking process. Nevertheless, we pursue this ideal as a promise to ourselves that whatever action we take as group has passed the proverbial test of fire and is, as far as practicable, fair to everyone.

          Since I was a college freshman, I participated in debate tournaments and won my fair share of awards. Initially, it was all about the competition. I had a change in perspective when, in an interview, I was asked a simple but disarming question: “What’s the point of debating? What’s the point of having people talk and clash with one another?” Being relatively unexposed to discourse outside of competitive debate circuits, the answer did not come to me soon enough in order to leave a good impression on my interviewers. Regrettably, the answer came to me when I was already taking up constitutional law in law school. The better answer is that healthy debate is crucial for discourse in this complicated system we call democracy because the entire system which includes the laws, policies and even the roster of elected public servants can only be as good as the discourse that put them in place. We are the ones who decide who gets elected, which laws get passed, and which policies are pursued. Before we decide, we always discuss.

          After that realization, I took on the advocacy of sharing my knowledge of proper argumentation to young people in order to encourage more productive public discussions and to weed out the habits that poison the ocean of discourse early such as cursing, degrading, humiliation and intimidation. These habits do not inspire intelligent discussion that is the foundation of a vibrant democracy. To this end, I’ve retired from competitive debating taught in workshops and seminars here and abroad. I am also a regular judge in local debate tournaments. For me, this is more than just “paying it forward”. It is a personal advocacy borne out of my hope for change. I hope for a future where the daily social and legal dead ends we encounter because we fail to amicably settle and reach a compromise in petty quarrels and in bigger issues, would no longer be a problem.

          My advocacy is to make people understand the responsibility that comes with their opinions and that freedom of speech is not the freedom to be irresponsible and to defame, or a license to smear reputation and ruin credibility.

          I understand that my efforts are but tiny drops into a large ocean. Even so, I pursue this ideal because each drop still makes the ocean of discourse less salty. Soon enough, we will be discussing groundbreaking ideas and abstain from toxic discussions that suffocate them.

 II. Liberty and prosperity under the rule of law

          Every day, I have been waking up to a succession of complaints online or otherwise expressing disappointment in the quality of discourse on Philippine politics and laws. I understand that it’s frustrating and infuriating. But we should not let disillusionment prevent us from fighting back with facts and reason with a calm disposition. Those who, in their rage and frustration, call for the circumvention of human rights and the rule of law already have safety in numbers. How can we be vigilant in silence?

          This overwhelming tide of public outrage, while misguided, has inspired a dangerous contempt for fundamental rights namely: the rights to life and due process. Generations of suffering under a government which is perceived to be incompetent and corrupt, and under a society plagued by crimes blinded us from seeing the relevance of the rule of law. Why should we be shackled by rules when our enemies, the criminals, the corrupt, and those who threaten our safety are bound by none? This has become a contagious sentiment among those who openly support extra-judicial killings and making the police less accountable for their operations’ casualties. The idea horrifies reasonable law students but unsurprisingly, it is appealing to people who endured years of crime and corruption. It is a sad reality that when justice is out of reach, frustrated people would put the law in their own hands.

          In simple terms, “rule of law” means that the government is a government of laws and not of men. That everyone in society is bound by the law, including the government. It is a core feature of democracy. Nineteenth century theorists[2] and modern day organizations such as the World Justice Project[3] point to its four fundamental principles:  First, the government and its officials and agents are accountable under the law; Second, the laws are clear, publicized, stable and fair, and protect fundamental rights, including security of persons and property; Third, the process by which laws are enacted, administered and enforced is accessible, fair and efficient; and Fourth, access to justice is provided by competent, independent and ethical adjudicators, attorneys or representatives and judicial officers who are of sufficient numbers, have adequate resources, and reflect the make-up of the community they serve.

          “Liberty and prosperity” which the rule of law aims to keep in place, for me, is relative. While there is no question on what liberty pertains to, prosperity can be many things. For some, it means economic or financial well-being. For me, prosperity could also mean being able to live in a community with people who guard it against arbitrary restrictions.  A prosperous society is where the citizens guard their liberties zealously with the understanding that doing so is the only way they can freely pursue their economic, social and cultural development.[4] Autocrats may promise prosperity and security but only a free society would guarantee that the mentioned promises would redound to the benefit of all and not just a selected few.

          In light of the recent developments here and around the world where radical groups coming from disillusioned sectors call for the circumvention of due process to get immediate results,[5] the mentioned list should be expanded to include another principle. The fifth principle is that the people understand the importance of laws for themselves as individuals and as a group. I fully support the first four principles. However, laws would be meaningless when the people to whom these laws apply, do not understand their importance. This is relevant because even the most stable of structures would collapse against an unrelenting tide of skepticism. Civilizing discourse makes sure that the tide is calm and manageable. In fact, this view is shared by many including Professor Richard H. Fallon, Jr. who believes that there must be an element of understanding: “The first element is the capacity of legal rules, standards, or principles to guide people in the conduct of their affairs. People must be able to understand the law and comply with it.[6]

          Disappointment and disdain against the rule of law is not just a product of slow delivery of justice. Most of the time, it is a result of the people not understanding how it works. The consequence is tragic. For example, here, the Commission on Human Rights (CHR) received flak for its strong statements against extra-judicial killings and the rising number of casualties from police operations following the government’s declaration of an all-out war against drugs. Angry people called for its abolition even going as far as calling human rights useless and that they only serve to protect criminals from being delivered to “justice”. They did this without understanding the CHR’s mandate and the fundamental rights that it is tasked to uphold and protect.

          The same problem was observed when people openly supported vigilante justice while brushing aside calls for due process and the presumption of innocence for the accused. They called for blood without realizing that the very rights they seek to set aside are the same rights which guarantee their protection when they find themselves at the receiving end of persecution in the future.

          Even the magistrates of the Supreme Court were not spared from this tide of contempt.[7] Fortunately, the court took the moral high ground by refusing to fight fire with fire and responded instead with a firm but calm admonition of the administration’s approach to the drug problem. However, this fiasco has shown us that no one, even the high court, is immune from the effects of a toxic public discourse which ignores reason and blinds the masses from seeing the adverse consequences of circumventing the law.

          These problems are clear effects of a lack of understanding of the rule of law. This willful ignorance is even reinforced by the uninformed discourse fueled by rage, disappointment, and frustration. The same emboldens vigilantes and nurtures contempt for the rule of law. Without addressing these issues, a system of accountable officials and agents; clear, publicized and stable laws which protect fundamental rights; accessible, fair and efficient administration of the laws; and competent, independent and ethical adjudicators, attorneys or representatives and judicial officers, will always be in constant jeopardy.

          One way to nip the problem in the bud is to address the problem in education. Reforms should be made in the current curriculum to encourage critical thinking, social awareness, and understanding of our laws. The solution shouldn’t be confined to government action, however. Civil society and the private sector should also chip in and aid in nurturing progressive thinkers who see the bigger picture and who possess the fortitude not give in to the strong demand for conformity.

III. Promoting this philosophy as a student and in my future legal career.

          This is why, as a student, I intend to promote the foundation’s philosophy by continuing to teach debate, the law, and relevant issues inside and outside our country. The growth of debate culture will create safe spaces for people to speak up and to learn how to cope with criticism. While  speaking in front of others is a frightening experience for most people especially the youth who were raised to respect authority, it is a necessary fear to overcome in order to encourage more participation in public discourse and to keep ignorance in check. This in turn ensures the health of our democracy and our liberty. Despots rise to power when people are silent. Abuses become normal when nobody expresses indignation against them.

          In my future legal career I still plan teach and volunteer as a lecturer in legal education workshops for non-law students. My background in policy and law will help me in making people understand the relationship between law, policy, and discourse. I plan to teach both in law school and in college. In law school, I want my future students to learn that the law must be appreciated in light of reality because legalese devoid of reality is counterproductive. Aspiring lawyers should learn that the law is not a lifeless body of rules. It is reason given life. Apart from teaching, I also plan to work as a government lawyer. I believe that the government needs young blood. It needs young people who still have some optimism left in them who have the energy and enthusiasm to propose reforms when necessary.

          Laws and policies change as often as public officials come and go. What I hope to achieve is to make a substantial contribution towards enriching public discourse by encouraging people to become more responsible and reasonable participants ─ to see beyond petty differences and mistakes and look at the bigger picture. I want people to understand the important role of their opinion in affecting policy and that they should be responsible for their opinions and criticisms no matter how small these are in comparison to the much larger ocean of discourse. I want them to realize that “the aim of argument, or of discussion, should not be victory but progress.”[8]

[1] Wendell Philips

[2] See for instance the works of Albert Van Dicey and of Friedrich A. Hayek, The Road to Serfdom 72 (U Chicago, 1944) and Friedrich A. Hayek, The Constitution of Liberty 208 (U Chicago, 1960) cited by Todd J. Zywicki, Associate Professor of Law, George Mason University School of Law in Rule of Law, Freedom and Prosperity: A Symposium Sponsored By the Law and Economics Center at George Mason University School of Law: The Rule of Law, Freedom and Prosperity, 10 S. Ct. Econ. Rev. 1 (2002).

[3] The World Justice Project® is an independent, non-profit organization advancing the rule of law worldwide available at http://worldjusticeproject.org/who-we-are last accessed September 13, 2016.

[4] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 [ICCPR].

[5] See Donald Trump’s Contempt for the Rule of Law available at http://www.nytimes.com/2016/06/07/opinion/the-judicial-system-according-to-donald-trump.html?_r=0 ; The EU and the Rise of Extremism and Populism: How to protect democracy and the rule of law in Europe? available at http://humanistfederation.eu/our-work.php?page=the-european-union-and-the-challenge-of-extremism-and-populism.

[6] The ‘Rule of Law’ as a Concept of Constitutional Discourse, 97 Colum. L. Rev. 1 (1997).

[7] Ramos M., Alconaba N., “Duterte Defies Supreme Court” available at http://newsinfo.inquirer.net/804700/duterte-defies-supreme-court.

[8] Joseph Joubert

The Power and the Limitation of Law in the Pursuit of Liberty and Prosperity

By: Vanessa Gloria S. Vergara

Ateneo de Manila University School of Law

Executive Summary

     As powerful as the law is, I have come to realize that it means nothing if it doesn’t address the actual realities that people live in. Well-worded laws on civil liberties mean nothing if they exist in a society where people are abused economically, where people don’t have a voice in society because they’re too hungry to speak. Further, the best laws on access to basic services and protection of trade would be in vain if they didn’t come with real improvements in the civil and political freedoms of the most marginalized members of society. If the law is to mean anything, it has to be sensitive to the actual realities of the people, and to adjust to what we really need.

 

     To my mind and little as I know of the actual experience of the legal profession, men and women of the law can play a role in the pursuit of justice, liberty, and prosperity especially in three aspects. The first is in the upholding of the importance of dialogue and deliberation. The second is in our capacity to represent other people’s points of view. The third is in our role of support in the everyday lives of people.

 

     As to the first: we’ve all heard stories about how lawyers are scumbags of the earth. Sometimes, these stories involve a lawyer representing a guilty/criminal/evil person. But my law school education so far has really driven home to me the idea that even well-meaning people can get a justice verdict wrong, because nobody has a monopoly on the truth. The idea of which person is innocent or guilty or which verdict is just, further, is too important a matter to leave to just one person, or to a group of people who have not thought it out, to decide. Thus we have the justice system, which involves the threshing out of both sides of an issue – even of the side which most people believe to be wrong. It involves dialogue, debate, and careful deliberation. It involves second-guessing our own long-standing opinions.

 

     As to the second: it is notable that lawyers, quite apart from taking part in deliberations on justice, also have the job of representing others in the process.

 

     I recall reading Hannah Arendt’s account of the plight of the millions of stateless people in Europe after the end of the first World War, who were deprived of their citizenship and thus had to live outside the jurisdiction and without the protection of the law.[1] These people, being outside the pale of the law, roaming from the borders of one country to another or living in interment camps, could be argued to have more freedom of movement and speech than their contemporaries who lived in totalitarian countries.[2] And yet, their so-called freedoms mattered little in their attainment of justice.

 

     “[T]heir freedom of movement, if they have it at all, gives them no right to residence which even the jailed criminal enjoys as a matter of course; and their freedom of opinion is a fool’s freedom, for nothing they think matters anyhow…The fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective…/the loss, in other words, of some of the most essential characteristics of human life.”[3]

 

     Indeed, the chance to direct our own lives, to have lives that matter, to have opinions and points of view that are recognized as legitimate by others – in short, the chance for our humanity to be recognized – I believe this to be the end of justice.

 

     As to the third: one useful thing about the legal profession is that it can be intimately involved in every aspect of life. Thus, we men and women of the law have a duty to use our everyday positions in society to pursue justice. This is true not only for those involved in government work or in litigation where the civil rights of clients are at issue, but also for those who involve themselves in corporate work and business. Wherever we are, whatever we choose to involve ourselves in, we have a duty to work towards liberty and prosperity.

[1] Hannah Arendt, The Origins of Totalitarianism 286 (1973).

[2] Id. at 296.

[3] Id. at 296-297.


          Mud was a movie that was showing on television a few days before my first official day in law school. The movie really didn’t have anything to do with law, except that in one scene the young protagonist is sitting by the river, watching agents from the river development authority demolish the house that he and his family had been living in along the riverbanks. His best friend passes by and asks him why they’re demolishing his house.

The boy answers plainly: “that’s the law.”

The best friend replies: “that’s bullshit.”

          I don’t know, but this exchange of words between the two boys, and the helplessness with which they watched the demolition continue, has always stayed with me a little. Not that I think that the law is bullshit, only that I understand how it can feel absurd. It’s a bunch of words on paper, written by strangers far away, and yet it’s powerful enough to take people’s homes away from them. It’s so powerful that it can affect whether we have a place to go home to everyday, whether we get to eat or go to school, and ultimately whether we feel safe and included in society.

          Indeed, the scene above, I think, perfectly illustrates how law can affect both liberty and prosperity – liberty, in the way it can affect our sense of helplessness and impotence, our lack of freedom in directing our own lives; prosperity, in the way it can make real decisions about our basic means of living. Use law in the right way, and it can mean that people are well-fed, have a home, are educated, and feel secure in their civil liberties. Used in the wrong way, and it can make people hungry, vulnerable, impotent, and helpless. In fact, law, in the way it interplays with both liberty and prosperity, can alter drastically the way we feel about our own humanity and dignity.

          It’s difficult for me to grasp if I really think about it. It’s difficult to fully comprehend how something can be so powerful, and how such a powerful tool can be so easily used for both positive and destructive ends.

          At the same time, as powerful as the law is, I have also come to realize that it can mean nothing if it doesn’t adjust itself to and address the actual realities that people live in. Well-worded laws on civil liberties mean nothing if they exist in a society where people are abused economically, where people don’t have a voice in society because they’re too hungry to speak. Further, the best laws on access to basic services, jobs, and protection of trade and business would be in vain if they also didn’t come with real improvements in the civil and political freedoms of the most marginalized members of society. If the law is to mean anything, it has to be sensitive to the actual realities of the people, and to adjust to what we really need. Only then can law be said to be perpetuating a society that is truly just, where both liberty and prosperity are upheld.

          One of the lessons from our first year Philosophy of Law class that I’ve really drilled into my long-term memory is the idea that the law is not always the same as justice. Robert Kidder’s writings on Critical Legal Theory, for instance, expound on the way law can be a device of domination, utilized by the ruling class to establish and maintain their dominance over others.[1] Sen evoked the concept of nyaya, a Sanskrit word for justice, which asserts that justice goes beyond the law, and that it manifests itself not only in the law, but more importantly in “the world that actually emerges.”[2] In fact a law, no matter how well written, would still constitute injustice if it indeed caused injustice in the real world.[3]

          Following Kidder, if the law is not the same as justice, then it is our job to challenge the assumptions behind the law and reveal the conflicts behind it.[4] We must work, not simply to live by and uphold the law, but to see to its improvement – if needed, “to further just arrangements not yet established.”[5] Our duty is not to the law, but to justice – including the pursuit of both true liberty and prosperity.

          To my mind and little as I know of the actual experience of the legal profession, men and women of the law can play a role in the pursuit of justice, liberty, and prosperity especially in three aspects. The first is in the upholding of the importance of dialogue and deliberation. The second is in our capacity to represent other people’s points of view. The third is in our role of support in the everyday lives of people.

          As to the first: we’ve all heard the stories about how lawyers are scumbags of the earth. Sometimes, these stories involve a lawyer representing a guilty/criminal/evil person. But my law school education so far has really driven home to me the idea that even well-meaning people can get a justice verdict wrong, because nobody has a monopoly on the truth. The idea of which person is innocent or guilty or which verdict is just, further, is too important a matter to leave to just one person, or to a group of people who have not thought it out, to decide. Thus we have the justice system, which involves the threshing out of both sides of an issue – even of the side which most people believe to be wrong. It involves dialogue, debate, and careful deliberation. It involves second-guessing our own long-standing opinions. Hopefully, in law school, we are trained well enough in the art of deliberation so as to be able to use it even outside the courts.

          In the Apology, Socrates asserts that the wisest person is the one who knows that his wisdom is “worth nothing,” and then he spends the rest of his life trying to talk to people in order to get them to see the limitations of their own perspectives.[6] In the same vein, Sen talks about the need for reasoning in order for us to check if our actions, although not intended to be injurious, have that effect.[7] He says that to prevent catastrophes and injustices, “we need critical scrutiny, not just goodwill towards others.” [8] He further says that any theory of justice “depend[s] on contributions from discussion and discourse.”[9]

          The importance placed on the role of discussion and discourse in the pursuit of justice has got me to thinking that justice isn’t so much found in the result or decision of an issue, as in the process itself. That is, justice is not just giving someone what is his due, but more than that – allowing him the chance to be a part of the process. I believe this is embodied in Socrates’ dying wish at the end of the Apology. He implores his audience, when his sons have grown up, “to trouble [my sons] as I have troubled you… And if you do this, I and my sons will have received justice at your hands.”[10] Socrates saw justice in the act of troubling itself.

          As to the second: it is notable that lawyers, quite apart from taking part in deliberations on justice themselves, also have the job of representing others in the process. I believe this to be the end of justice.

          I recall recently reading Hannah Arendt’s account of the plight of the millions of stateless people in Europe after the end of the first World War, who were deprived of their citizenship and thus had to live outside the jurisdiction and without the protection of the law.[11] These people, being outside the pale of the law, roaming from the borders of one country to another or living in interment camps, could be argued to have more freedom of movement and speech than their contemporaries who lived in totalitarian countries. [12] And yet, their so-called freedoms mattered little in their attainment of justice.

“[T]heir freedom of movement, if they have it at all, gives them no right to residence which even the jailed criminal enjoys as a matter of course; and their freedom of opinion is a fool’s freedom, for nothing they think matters anyhow…The fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective…/the loss, in other words, of some of the most essential characteristics of human life.”[13]

          Further, I recall an incident I experienced while working for an organization which handled the matter of a conflict between a planned government project and an indigenous cultural community. It was this one day I was with the members of the community, and we were all so absorbed in discussing the issue that night fully set in before we looked up from our talk and the heads of the families remembered that none of them had started to prepare dinner yet. The members of the community were trying to explain to me that they didn’t want the government project because it clashed with their own vision of how their land should develop. I remember all the stars were out over the forest, and there were fireflies hovering over the trees that surrounded us. I think it was that night that it really struck me how the heart of the conflict was a difference in point of view, and that the people who lived there very badly wanted their point of view to be recognized.

          Indeed, the chance to direct our own lives, to have lives that matter, to have opinions and points of view that are recognized as legitimate by others – in short, the chance for our humanity to be recognized – these are what constitute the fabric of justice.

          Further, if freedom and the ability to be human are what constitute justice, then poverty or injustice is, for Sen, the deprivation of capability. [14]In the pursuit of justice, more attention has to be given to those who experience the short end of the inequality of capabilities, those who make up the marginalized of society.[15] Rawls, too, writes that society must favor those who are in the less favorable social positions.[16] It is to these people, above all, that we must answer to in whatever work we end up pursuing as men and women of the law. By helping to include them in the process towards justice, we are in the position to help the most marginalized assert their humanity.

          As to the third: one useful thing about the legal profession is that it is involved in every aspect of life, and it has an impact in every aspect of life. Lawyers are not just there for when we want to get out of jail, but in fact they can be intimately involved in the everyday matters of life. Thus, we men and women of the law have a duty to use our everyday positions in society to pursue justice. This is true not only for those involved in government work or in litigation where the civil rights of clients are at issue, but also for those who involve themselves in corporate work and business. Wherever we are, whatever we choose to involve ourselves in, we have a duty to work towards liberty and prosperity.

          My vision is of a society where people feel truly human, and where people can pursue their humanity to its fullest potential. This means a world where even the most marginalized members of society can believe that they can control their own destiny, that they can pursue their higher dreams of life, whatever those may be. It also means, necessarily, a world where people are free from poverty, hunger, and the denial of their basic rights. This society can only be achieved where the law is reflective of and responsive to the actual situations of the people, and addresses the pursuit of both liberty and prosperity, and where men and women of the law must be conscious of their role in upholding the law, liberty, and prosperity.

[1] Robert L. Kidder, The Origins of Law: Conflict, The Critical Perspective, in CONNECTING LAW AND SOCIETY 83, 89 (1983).

[2] AMARTYA SEN, THE IDEA OF JUSTICE 20 (2009).

[3] at 20-21.

[4] Kidder, supra note 1, at 87.

[5] JOHN RAWLS, A THEORY OF JUSTICE 99 (2nd 1990).

[6] Plato, Apology, available at http://classics.mit.edu/Plato/apology.html (last accessed Oct. 9, 2014).

[7] SEN, supra note 2, at 46-47.

[8] at 48.

[9] at 88-89.

[10] Plato, supra note 8.

[11] HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 286 (1973).

[12] at 296.

[13] at 296-297.

[14] SEN, supra note 2, at 256.

[15] Id. at 232

[16] RAWLS, supra note 7, at 86.

Rule of Law as the King

By: Violeta M. Najarro, Jr.

San Beda College Alabang College of Law

Executive Summary

 

     Each of us can choose what to like and unlike. We have the option to see things as moral or immoral, good or bad. Thanks to the rule of law, anybody has the free will of what he wants to do or not.

     Basically, the rule of law tells us when our actions may be punishable. It draws the line and lets us know our boundaries. Thus, we must have ready access to it. Laws must be made known to us before it can be implemented. If we can’t find or predict the law, our acts will be limited because no one will gamble doing anything which might be illegal. This is why we have a requirement of publication under the Civil Code. The rule of law means equality before the law. The Law is the King, and no one is above it. Each one of us is subject to it. It should always be for the best interest of the common good.

     Passing along Metro Manila, we see buildings, billboards, hotels, motels and even night clubs. Entering a store, we see a variety of goods, from liquors to cigarettes, and magazines to videotapes, we see all these and their different classes. Interestingly, though some may find these things unhealthy, unpleasant, or even sinful, these things still stand legally because of rule of law.

     Thanks to the rule of law, we have the liberty to move and act without unnecessary restraint. I believe that it is only with maximum liberty that a person can truly attain prosperity. Liberty and prosperity are inseparable. For it is only with liberty that a man can utilize his human experience. But we should keep in mind that our liberty is limited by the same liberty exercised by others. Liberty is achieved when the rule of law is equally applicable to all people. As Lord Acton said, Liberty is the assurance that every man shall be protected in doing what he believes his duty against the influence of authority and custom and opinion. For this reason, he declared that the securing of liberty “is the highest political end”.

     This leaves us the duty of protecting liberty and prosperity under the rule of law. This is not an easy task for we are faced with different challenges. This is why whenever there are threats to our freedom, we instantly object and criticize. Relatively, seeing the news today, we see people expressing their opinions. They may support or criticize any public official. They may write articles, assemble in Luneta, or even rally in front of Malacañang. They can do all of these without being punished, because the law allows them to do so.

     Although now, maybe there is nothing much I can do, I believe it is important to engage in intelligent discussions about this. It is always exciting to interact with experienced people themselves. I remember when I was taking Constitutional Law II during my first year in law school. My professor was the lawyer of a well-known accused then. I saw the fury of most people for “defending” a “criminal”. Back then, I couldn’t understand why he had to be the lawyer for such person. But while we were on the topic of due process, he told us how we was able to acquit a drug pusher. He was not proud of it, for he knew his client was guilty, but the explained that the police officers spent and replaced the marked money, causing the mismatch of the serial numbers on record.  Applying due process, his client was acquitted. I then understood the concept of rule of law, that it applies to everyone, even to the evilest of all.

     As I study the law deeper, I am seeing the connection of the subjects to one another and the more I appreciate studying it. I know that I have a lot more to learn but this doesn’t stop me from giving importance to the rule of law. I may still be a student, trying my very best to pass each subject I take, but I am not just a student. Above all, I am a citizen, freely exercising and enjoying this liberty that was granted to us by law and the prosperity that comes with it, and I know that I have the duty to protect it in any way I can.

 


          Each one of us can choose what to like and unlike. We all have the choice to see things as moral or immoral, good or bad. Thanks to the rule of law, anybody has the choice of what he wants and what he does not.

          Basically, the rule of law tells us when our actions may be considered punishable. The rule of law gives us the draw line of where things become illegal. This way, we all know our limitations. We all know our boundaries. We have an idea where to stop and we have the choice if we really want to get into that trouble.

          By this, it follows that each of us must have ready access to the law. Laws must be made known and available to the people before it can be implemented. This way, we know what can and cannot be done. If we can’t find or predict the law, then our acts will be limited as to what we think is legal because we will not gamble doing something which might be illegal. We may not even engage in contracts because we do not know the law. It cannot be considered a rule if it is unknown. This is why there is the specific requirement of publication provided by the Civil Code before a law may take effect. This is basically, due process and part of which is that laws must apply prospectively and never retroactively. Thanks to the rule of law, each of us are protected from the dangers of the strong power of the State.

          The rule of law means equality before the law. The Law is the King and no one is above it. Each one of us is subject to the rule of law. However, the law cannot control everything because if that is the case, then the law should be able to provide for all conditions existing and conditions yet to come. It must contain all the details and circumstances of implementation which is, clearly, impossible to fulfill. For we know that by its nature, at the time of the creation of a law, there are future events yet unknown. At the time a law leaves the legislature, it has little spaces for implementation which shall be later provided by administrative agencies. Moreover, if laws are so voluminous or so incoherent, then it cannot be understood by the people, especially the common people, whom the law is trying to protect. These are the limitations on our law makers. The law must be clear of ambiguities, publicized, stable, non-contradictory, accessible, and must not be impossible to adhere to. It should always be for the best interest of the greatest number of people, of the common good, and not only for the special interest of specific individuals.

          As we drive and pass along the streets of even just Metro Manila, we see a number of people and things. We see buildings of great height, billboards of various types, some may even be of mature content, hotels, motels and even night clubs. We see ordinary people, businessmen and even beggars roaming around the streets and knocking on our car’s windows, selling different items. As we enter into a store, we see different classes of goods. From liquors to cigarettes, and magazines to videotapes, we see all these, and their different classes. Interestingly, even though a number of us may find some of these things unhealthy, unpleasant, or even sinful, these things still stand legally because of rule of law, because the law allows it to do so.

          Thanks to the rule of law, we have the liberty to move and to act without unnecessary restraint. Liberty gives us the choice, to choose or not to choose at all. I believe that it is only with maximum liberty that a person can truly attain prosperity. Liberty and prosperity are inseparable. For it is only with liberty that a man can exercise and utilize his human experience. With liberty, the choices are laid in front of him and it is up to him to choose what he thinks will benefit him. With liberty, a person can live up to his full potential and be the greatest he can be. Thanks to the rule of law, a person has the freedom to make use of his life, liberty, and property as he deems fit and for all the purposes he may have. But we should keep in mind that our liberty is limited by the same liberty possessed and exercised by all the other individuals of our society. Liberty is achieved when the rule of law is equally applicable to each individual in society. As Lord Acton said, liberty is the assurance that every man shall be protected in doing what he believes his duty against the influence of authority and custom, and opinion. For this reason, he declared that the securing of liberty “is the highest political end”.

          This leaves us the duty of protecting liberty and prosperity under the rule of law. We all know that this is not an easy task. More often than not, we are faced with difficult situations and challenged by different circumstances. We do not want to lose this liberty because we want to achieve such prosperity that comes with it. This is why whenever there are threats to our freedom, we are fast to object and criticize. Relatively, today, as we watch the news and read the newspapers, or even as we log in to our social media accounts, we see variety of people voicing out and expressing their different opinions. Some even exchange words to convince each other to see their side. They may be for or against the actions of the government. They may support or criticize any and all public officials of their liking,  including the highest officer of the land. They may do these through writing different articles, assembling in Luneta, or even rallying in front of Malacañang. They can do all of these with liberty, without being punished, because that is the essence of rule of law. The law allows them to.

          Although now, maybe there is nothing much I can do, I believe that it is important to engage in active and intelligent discussions about this, to learn more of its significance and impact to the society. We always learn a piece or two by discussing with other people. It is important to share our ideas to those whose ears and minds are open and at the same time, to open our ears and minds to those who share theirs. Although we can also earn ideas and knowledge from the books, it is much more exciting to listen and interact to experienced people themselves. I remember when I was taking Constitutional Law 2 during my first year in the School of Law. My professor then, was the lawyer of a well-known accused that time. I would always see in the comment sections of news articles, the fury of most people at my professor for “defending” a “criminal”. Back then, I, too, couldn’t understand why he had to be lawyer for such person. But while discussing the topic of due process, he once told us a story of how we was able acquit a drug pusher. He was not proud of it, but he cannot do anything about it because it was his job to ensure that the law applies accordingly. He knew his client deserved to be convicted but he explained that it was not his fault if the arresting officers spent the marked money and replaced it, causing the mismatch of the serial numbers of the marked money on record and that which was presented in court.  He knew that his client was guilty but because he had to apply the rule of law, the accused was acquitted. It was then that I understood and appreciated the rule of law. That it applies to each one of us, even to the evilest of all. The more I wanted to become a lawyer.

          Last summer, during my short stint as one of the Legal Interns at the Office of the Solicitor General, I was exposed to the reality that it is so easy to be consumed by the spoiled system. That because of the large workload, it is tempting to see each case as just another case, and an addition to the pile of so many cases pending therein. I was tasked to make drafts of Appellee’s briefs, mostly for drug cases. My supervising lawyer taught me that if I that think the prosecutor is wrong, then I don’t have to agree with him. He told me that he had, on many times in the past, reversed the findings of a prosecutor and acquitted several accused when he deemed fit. He emphasized that I should never forget that the primary goal is not always the conviction of the accused but the primacy and administration of justice.

          These are just some of the many situations that made me a fan of learning from other people sharing lessons from their actual experiences. I appreciate listening to my professor’s stories and encouragements, I enjoy listening to different speakers’ speeches whenever I have the opportunity. I gain inspiration from them and their stories always make me wonder what I would have done and what I will do if I will be put in those situations. Will I do the right thing? Is the right thing for me really the right thing? The questions that come to my mind. I aspire to be able to share my own experiences and learnings, too, in the future. This is also one of the reasons I applied for this scholarship. Because I know that for now, my knowledge is still limited. Mostly from the books and from the four corners of the classrooms. I want to deepen my understanding. With many issues our government is facing, I want to be enlightened and not be limited by the insufficient knowledge that I have. I know that if I will be blessed to be one of the awardee, I will be able to fully appreciate and learn liberty and prosperity with greater depth with the help of the foundation. So that in time, it will be my turn to enlighten others in return. For now, as soon as I acquire my third year completion, I will join the Legal Aid Center in our school to have more exposure in the application of law.

          As soon as I become part of the legal profession, I want to, and I will, give back to the society. I hope to become someone who will be of service to other people. My goal is to serve and not be served, to give and not to receive. I aspire to be part of different conferences and forums and be able to contribute fully and meaningfully to the discussions with other professionals as well. So that later on, I will be able to impart what I learned to the ordinary people, in simplified terms, the importance of liberty and prosperity under the rule of law.

           As I study the law deeper, and longer in time, each and every subject makes more sense to me. Little by little, I see the connection of the subjects to one another and the more I appreciate the study of law. I know that I have a lot more to learn and God knows I am not even halfway there but this fact doesn’t stop me from knowing the importance of the rule of law. I may still be a student, trying my very best to pass each subject I take, but I am not just a student of law. Above all, I am a citizen, freely exercising and enjoying this liberty that was granted to us by law and the prosperity that comes with it, and I know that I have the duty to protect it in any way I can.

PCNC Conducts Evaluation Visit for FLP

On 23 August 2016, the Philippine Council for NGO Certification (PCNC), a private organization tasked to certify non-profit organizations that were able to comply with the established minimum requirements and criteria for financial management and accountability, visited the Foundation for Liberty and Prosperity (FLP) vis-à-vis our application for renewal of accreditation.  Last year, the Foundation was given a one (1)-year accreditation and we are hoping that this year we will be given a three (3) or five (5)-year accreditation by the PCNC Board.

The evaluators from PCNC were Atty. Emma G. Juralbal (Team Chairperson for Financial Management and Administration), Ms. Noemi L. Villaruz (Head for Program Operations, Networking, Vision, Mission, Goals and Governance) and Ms. Mhel C. Mateo (PCNC Secretariat).  They reviewed various FLP documents, including among others, its financial and administrative policies, program operations manual, financial and program plan and the like.  The evaluation covered the following: governance, networking, vision, mission, goals, program operations, financial management and administration.  The evaluators also interviewed former Chief Justice Artemio V. Panganiban (Chairman), Evelyn T. Dumdum (President), Atty. Joel Emerson J. Gregorio (Corporate Secretary), Atty. Martin Angelo L. Esguerra (Executive Director & COO), Rebecca G. Felix (Treasurer), Cenona L. Mia (Finance Officer), Dean Nilo T. Divina of University of Santo Tomas Faculty of Civil Law (professorial chair holder) and Ateneo law students who participated in the programs of the Foundation.  Thereafter, the evaluators conducted a wrap-up session among themselves to discuss their findings and recommendations to be submitted to the PCNC Board for approval.

The certification from PCNC is a seal of good housekeeping that prospective donors and funding agencies may look for in their selection of NGOs to support.  Once an organization meets the criteria for certification, the PCNC Board offers a 1, 3 or 5-year certification, and endorses the NGO to the Bureau of the Internal Revenue (BIR) for the issuance of a BIR Certificate of Registration as qualified donor institution.

Local NGOs that comply with government requirements are certified by PCNC.  They make sure that the NGOs maintain transparency, since most of them receive donations from individuals and corporations.  For more information please visit their website: http://www.pcnc.com.ph/

 

Spreading the Gospel of Liberty and Prosperity

*Keynote address delivered by Chief Justice Artemio V. Panganiban during the National Forum on “Liberty and Prosperity”, held on August 24-25, 2006, at the Manila Hotel.

 

Good afternoon and Mabuhay to all of you. I am deeply honored to deliver this keynote address before so many distinguished jurists, lawyers, diplomats, business heads, civil society leaders, academics, and high government officials from different parts of the world gathered here today for this three-day Global Forum on Liberty and Prosperity.

In this keynote address, it is my purpose (1) to follow up and explain in greater breadth and depth the twin concepts of liberty and prosperity; (2) to expound on how the Global Forum was organized and structured; (3) to illustrate how the speakers and delegates may meaningfully participate; and (4) to discuss how the beneficent effects of these twin beacons of justice, as I am apt to call them, may be extended far and wide to the peoples of the world.

May I also say, at the outset, that it has been my personal crusade since joining the Philippine Supreme Court more than 11 years ago to actively espouse and propagate these twin beacons of justice. Upon assuming the chief justiceship of the Philippines last year, I publicly pursued them even more fervently. Indeed, they have become the cornerstones of my magistracy.
For that reason exactly, I embarked on a knowledge-sharing-cum-lecture circuit in May and June of this year. 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 Unites States, Spain, France , the Netherlands and the United Kingdom. In all my meetings with the various personalities and sectors mentioned, I was delighted to note the very warm reception given to Liberty and Prosperity. It was during those meetings that the format of this Forum was ironed out and initial invitations were extended.

I am thus grateful to, among others, World Bank (WB) President Paul Wolfowitz and Asian Development Bank (ADB) President Haruhiko Kuroda. Due to their inability to be physically present, both have graciously agreed to send video messages, which we will hear on Friday, October 20; US Supreme Court Justice Anthony Kennedy and US Court of Appeals Judge Clifford Wallace who, despite their unavoidable physical absence, have ensured their participation through video conferencing from their location in San Diego, California; as well as Chief Justice Guy Canivet of France and International Bar Association President Fernando Pombo Garcia, both of whom will personally present their views and experiences on these twin beacons.

I also thank those who have encouraged me to pursue my advocacy despite their inability to participate personally because of conflicts in schedule and other reasons. Among them are President Rosalyn Higgins of the International Court of Justice, based in the Hague; Chief Justice Willibord Davids of the Netherlands; President Francisco Jose Hernando Santiago of the Spanish Supreme Court; the Chief Justice of England and Wales, Lord Philipps of Worth Matravers; and Ms Karen Mathis, president of the American Bar Association.

On the same theme, several fora have also been conducted in my country over the past months. 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. This forum was followed shortly on August 24-25, 2006, by the National Forum on Liberty and Prosperity. 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. The resolutions passed during the forum outlined several plans of action on how to implement the twin beacons in our courts, in the legal profession, the academe, the government and society in general.

On top of these efforts, I wrote a book entitled Liberty and Prosperity. This book, together with a searchable compact disc (CD) version, will be circulated for the first time today to all delegates.

The lecture circuit and fora, as well as the book, have encouraged the members of our Supreme Court to sponsor this Global Forum to give the world community an opportunity to discuss Liberty and Prosperity. Fortunately, our aspirations drew the support of the United Nations Development Programme (UNDP), the World Bank, the 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).

In the next three days, we will share our national and sectoral experiences, mutually discuss the challenges confronting Liberty and Prosperity in various parts of the world, and draw lessons from them. As you may have noted from the program, we have invited a cross section of the global society to discuss the country experiences of Canada, Benin, Singapore, France, Argentina, Nepal, Russia, Guatemala, China, Egypt; and those of the bar associations, academic and judicial institutes, development institutions, other branches of government, and civil society.

I hope then that at the end of this 3-day forum, we shall have come to a mutual understanding of the principles of Liberty and Prosperity and mapped out common courses of action to carry them out globally. An example of a possible project is a global foundation for Liberty and Prosperity, which will serve as a venue for a continuing discussion and sharing of ideas, experiences, and best practices by the various sectors represented in this Forum. In this search, the foundation could also bestow international awards to outstanding personalities and programs advocating the twin beacons.

Let me now briefly go through various events that have given impetus to 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 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 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 now 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 limits.

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 expresion. [1] I am sure that many, if not most, of the countries represented in this Forum 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.

Recent Decisions Upholding Liberty

Very recently, our Supreme Court promulgated three landmark Decisions involving (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 landmarkReynolds v. Times Newspapers Ltd., [8] has been hailed as a triumph of the freedom of expression and of the press. The Lords of Appeal of the House of Lords, the court of last resort in the United Kingdom, 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 nongovernmental 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. Very recently, in Hamdan v. Rumsfeld [10] (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 [11] (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.

For sure, many other jurisdictions must have ruled on matters similar to those I have mentioned. Hence, we ask for your active participation, so that we may all learn from one another’s experiences, decisions and advocacies.

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 impel me to advocate a necessary—nay, indispensable—nexus between political liberty and economic prosperity, which I will explain shortly.

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 promote social 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). [12]

In the Philippines , our 1987 Constitution [13] 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.” [14] Our Constitution likewise demands the institutionalization of social justice. [15]

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.

For starters, Time magazine’s “Persons of the Year” for 2005—the world’s richest multi-billionaire couple, Bill and Melinda Gates—have staged their own campaign for vaccinations and public health care. Their target: to save 700,000 lives. [16]

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. [17]

Just last September of this year, billionaire financier George Soros announced that he was contributing $50 million to the Millenium Villages Project. This nongovernmental initiative seeks to show that closely focused development projects can alleviate severe poverty within a few years. [18]

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 a few days ago, on October 14, 2006. He and his Grameen Bank had pioneered micro credit 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 micro loans. [19]

Philanthropic endeavors in Asia have likewise brought back hope to the homeless, the blind, the poor, and the neglected. This year, six exceptional Asians and one exemplary organization were awarded the Ramon Magsaysay Awards [20] — Asia’s equivalent of the Nobel Prize. Later, one of these awardees, Mr. Antonio Meloto, will share with us civil society’s experience in arousing civic consciousness through the Gawad Kalinga Community Development Foundation. It 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”; [21] and why the ADB desires “to enhance the effectiveness and the accountability of the judiciary.” [22]

In the audio-visual presentation we have witnessed, ADB President Kuroda and WB’s Joachim von Amsberg discussed the necessary nexus between progress and a stable rule-of-law environment. Both agree that the rule of law forms the foundation of sustained economic development.

If I may paraphrase Mr. Amsberg, law and justice are basic ingredients of development. Thus, it is his submission that 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 is undergoing a massive law reform program, so that it may continue to play a critical role in the world economy.

In the light of these three developments, among several others, I am convinced 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 has 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.

Let me add that, as a rule, Philippine courts do not pass upon the merits or wisdom of economic policies. These are matters that have been left by our people to the President and Congress to evaluate and decide. [23]

This judicial no-interference rule on economic policy does not mean, though, that our courts in the Philippines will abdicate their duty of striking down “grave abuse of discretion.” As you may know, our judiciary has been vested by our Constitution with a unique duty to nullify not just legislative or executive acts that clearly violate the Constitution, the laws, or settled jurisprudence; [24] but also those that have been issued with arbitrariness, whim, caprice, bias or personal hostility. [25]

To the first set of acts—those contrary to the Constitution and the law—courts in general claim an inherent mandate flowing from judicial power. I suppose, though, that the second category is peculiarly Filipino. It traces its origin to the previous dictatorial regime, the magnitude and monstrosity of which were described earlier by our former President Corazon C. Aquino in our audiovisual presentation. [26]

Concretely, there have indeed been instances when courts had to perform a delicate balancing act between the demands of liberty and the needs of prosperity. In British Columbia Securities Commission v. Branch, [27] 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 are being proposed. For instance, Professor William Easterly, who has recently published a book entitled Elusive Quest for Growth, [28] opined that most economically advanced countries had adopted liberal democracy, in which human rights were zealously protected. [29] 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.[30] 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, [31] on the one hand; and, on the other, those whose stability may be traced to their openness to social, political, and economic change. [32]

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.” [33] 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. [34] The evidence supporting this theory, however, is hardly absolute.

Earlier, in the audiovisual presentation, Mr. Amsberg of the World Bank 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, the Filipinos may endure occasional hunger, but they will never tolerate injustice and indignity for long.

Closing

I have attempted, as best as I could, 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. I hope, though, that through an exchange of ideas, information, and best practices during this Forum, all countries and sectors represented may be able to evaluate the value of the shared experiences and to imbibe these as they may deem appropriate under their unique environmental circumstances.

Senator Angara, one of the leaders of our legislative branch, made an incisive point in the audiovisual presentation prior to my speech. He said that the matter of how best to calibrate the balance between liberty and prosperity must be left to the people of a particular country. Indeed, each country and each sector of society [35] has its own history, experience, temperament, economics, culture and politics, which should determine how viableLiberty 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.

I believe that should this Forum be able to discuss these varying approaches to balancing liberty and prosperity and later find some common areas from which some understanding may be culled and a program of action drawn, our gathering together during these three significant days in October 2006 would have been fruitful and successful.

Maraming salamat po.

__________

Keynote address delivered by Chief Justice of the Philippines , the Hon. Artemio V. Panganiban, during the opening ceremonies on October 18, 2006, of the three-day Global Forum on Liberty and Prosperity, at the Shangri-La Makati Hotel, Metro Manila, Philippines.

[1] ABS-CBN Broadcasting Corporation v. Commission on Elections (380 Phil. 780, January 28, 2000, per Panganiban, J.) In this case, the Court emphatically explained that, “when faced with borderline situations in which the freedom of a candidate or a party to speak and the freedom of the electorate to know are invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom.” This ruling recognizing public opinion polls as a species of the freedom of expression was echoed one year later in Social Weather Stations v. Comelec (357 SCRA 496, 501, May 5, 2001, per Mendoza, J.) In this case, the Court stressed that “because of the preferred status of the constitutional rights of speech, expression, and the press, a law prohibiting the publication of pre-election surveys is vitiated by a weighty presumption of invalidity.”

[2] For a sampling of how other countries have construed exit polls, please see Panganiban, Reforming the Judiciary 154-169 (2000).

[3] Senate v. Ermita, GR No. 169777, April 20, 2006. More accurately, the Court invalidated the major provisions of Executive Order No. 464. In simplest terms, the Decision held that Congress had the right to compel the appearance of executive officials in congressional investigations, because the power of legislative inquiry was as broad as the power to legislate. Hence, deemed unconstitutional were the provisions of EO 464. This executive order allowed the executive branch to evade congressional requests for information without properly invoking executive privilege in recognized instances. Nonetheless, the Court directed Congress to indicate, in its invitation to executive officials, the subject matter of the inquiry and of related questions, so that the President or the executive secretary could properly invoke executive privilege, if warranted.

To the extent that investigations in aid of legislation were to be generally conducted in public, the Court held that “any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress — opinions which they can communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. x x x.”

[4] Bayan v. Ermita, GR No. 169838, April 25, 2006. This ponencia, penned by Justice Adolfo S. Azcuna, stated thus:

“x x x[T]his Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expresion and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that ‘in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actiions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected to heightened scrutiny.’”

[5] David v. Arroyo, GR No. 171396, May 3, 2006. Writing for the majority in this case, Justice Angelina Sandoval-Gutierrez ruled as follows:

“All powers need some restraint; practical adjustments rather than rigid formula are necessary. Superior strength – the use of force – cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty.

“Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: ‘In cases involving involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak.’ Laws and actions that restrict fundamental rights come to the courts ‘with a heavy presumption against their constitucional validity.’”

[6] Bull n?16, Chambre sociale. http://www.courdecassation.fr/jurisprudence, last accessed on October 16, 2006.

[7] [2006] UKHL 44.

[8] [1999] UKHL 45.

[9] Recurso De Casacion Num. 1888/2001, Tribunal Supremo, Sala de Lo Contencioso-Administrativo, D. Enrique Lecumberri Marti, ponente.

[10] 548 U.S. ___ (2006).

[11] 542 U.S. ___ (2004).

[12] It is well to note that from the Universal Declaration of Human Rights, two solemn agreements emerged: (1) the Covenant on Civil and Political Rights; and (2) the Covenant on Economic, Social and Cultural Rights. Commentators on international law are wont to distinguish the two in terms of the executory character of civil and political rights as against the ideal or developmental character of economic and social rights.

[13] The following provisions of the Constitution, among others, mandate the State to promote economic prosperity:

Article II (Declaration of Principles and State Policies)

“Sec. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.”

“Sec. 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.”

Article XII (National Economy and Patrimony)

“Sec. 1. The goals of the national economy are 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.

“The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

“In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.”

“Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.”

“Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.”

[14] Art. XII, Sec. 1.

[15] Art. XIII, Sec. 1:

“The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

“To this end, the State shall regulate the acquisition, ownership, use and disposition of property and its increments.”[15]

[16] Bono, the other Time “Person of the Year”, on the other hand, “charmed and bullied and morally blackmailed the leaders of the world’s richest countries into forgiving $40 billion in debt owed by the poorest.”[16] He believes that money saved from debt relief can be spent, instead, on health and schools rather than interest payments.

[17] This sum will be given gradually, beginning in July this year and continuing every year for as long as one of the couple — Bill, 50; or Melinda, 42 — is active in the Gates Foundation. But each installment must be spent in the year it is given. For 2006, Buffett has given 602,500 Berkshire B shares valued at about $1.5 billion, which must be spent by the Gates Foundation within the year.

[18] http://allafrica.com/stories/200609190864.html accessed on October 6, 2006.

[19] Philippine Daily Inquirer, October 16, 2006, p. 1.

[20] The 2006 Ramon Magsaysay Awardees are: Eugenia Duran Apostol, who was cited for her unrelentingly espousal of truth, independence and integrity in Philippine media; Ek Sonn Chan, who found fulfillment in providing safe, clean, and cheap drinking water for millions of Phnom Penh’s poor residents; Arvind Kejriwal, who made it his relentless crusade to educate New Delhi’s poorest citizens on their right to information and to empower them to fight corruption; Antonio Meloto who, together with the Gawad Kalinga Community Development Foundation, has demonstrated the meaning of deep commitment by building homes for slum dwellers in the Philippines; Dr. Sanduk Ruit who, by his abiding love, has bestowed munificent gifts of sight to the poverty-stricken people of Nepal; and Park Won Soon, who has fostered social justice, fair business practices, clean government, and a generous spirit in South Korea’s young democracy.

[21] See Legal and Judicial Sector Manual (2002), a World Bank publication.

[22] Law and Policy Reform, ADB Report, January 2005, pp. 26-28

[23] An example of this deference to economic policies can be found in Tañada v. Angara (338 Phil. 546, 604-605, May 2, 1997, per Panganiban, J.). In this case, the Philippine Supreme Court upheld the Senate’s consent to the Philippines ratification of the World Trade Organization (WTO) Agreement. This laissez-faire judicial policy on economic issues was reiterated in La Bugal-B’laan Tribal Association v. Ramos (445 SCRA 1, December 1, 2004, per Panganiban, J.). In affirming the constitutionality of the Mining Law allowing 100-percent foreign investments in large-scale mining, the Court held thus:

“x x x. The Constitution should be read in broad, life-giving strokes. It should not be used to strangulate economic growth or to serve narrow, parochial interest. 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.”

[24] Republic v. COCOFED, 423 Phil. 735, December 14, 2001.

[25] Benito v. Comelec, 349 SCRA 705, January 19, 2001; Defensor-Santiago v. Guingona Jr., 359 Phil. 276, November 18, 1998; and Philippine Airlines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994.

[26] Consistent with this “grave abuse” exception to the no-interference rule, the Supreme Court has nullified many contracts entered into by our government. Some of these contracts involved the reclamation of portions of Manila Bay, the construction and operation of the new Manila International Airport Terminal, and the automation of the 2004 national elections. (_Chavez v. Public Estates Authority,_ 384 SCRA 152, July 9, 2002; 451 Phil. 1, May 6, 2003; and 415 SCRA 403, November 11, 2003; per Carpio, J.; Agan v. PIATCO, GR No. 155001, May 5, 2003 and January 21, 2004, per Puno, J.; Information Technology Foundation of the Philippines v. Commission on Elections, GR No. 159139, 419 SCRA 141, January 13, 2004, per Panganiban, J.) Because of these decisions, our courts have been pilloried as unduly interfering in business and economic matters. Our critics, however, conveniently overlook the fact that, under our Constitution, our courts have the duty not merely to settle actual controversies involving legally demandable and enforceable rights. They must also strike down acts of any instrumentality of government whenever those acts have been entered into “with grave abuse of discretion.”

[27] 2 S.C.R. 3, April 13, 1995.

[28] MIT Press, Cambridge and London. Romain Wacziarg of Stanford University describes Easterly’s work as a “superb book [that] draws on what we have learned from almost two decades of cross-country growth comparisons” about “supposedly miracle growth policies [that] have proven disastrous or ineffective,” but wisely “avoids proposing a new panacea x x x.” Wacziarg, Review of Easterly’s The Elusive Quest for Growth, XL Journal of Economic Literature 907-918, September 2002.

[29] The discussion was summarized by Prof. Alex Magno, a participant in a relevant roundtable discussion, in his column in the Philippine Star on January 19, 2006.

[30] Ian Bremmer, “The J Curve: A New Way to Understand Why Nations Rise and Fall (2006)”. The framework is repesented by the “J Curve.” The vertical axis of the curve measures a state’s stability; the horizontal axis, its “openness.” Nations higher on the graph are more stable; those lower are less stable. Nations to the right of the dip in the “J” are more open; those to the left are less so. http://www.jcurvebook.com/ and http://en.wikipedia.org/wiki/J_curve, last accessed on October 14, 2006.

[31] Among these countries are North Korea, Iran, and Cuba.

[32] France, the United States, and Japan have been identified to be among these countries.

[33] “Law and Finance,” Journal of Political Economy, Vol. 106, No. 6, 1113-1155 (December 1998).

[34] 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.

[35] The religious sector, too, has genuine concerns about the alleviation of poverty and the sharing of resources. Thus, in the gospel last Sunday, October 15, 2006, Catholics throughout the world were reminded of the young rich man’s question, “What must I do to inherit eternal life?” and of the Lord Jesus’ answer, “Go, sell what you have and give to the poor, and you will have treasures in heaven; then come, follow me.” (MKA 10:17-30)

Safeguarding the Liberty and Nurturing the Prosperity of the Peoples of the World

* Keynote address delivered by Chief Justice of the Philippines , the Hon. Artemio V. Panganiban, during the opening ceremonies on October 18, 2006, of the three-day Global Forum on Liberty and Prosperity, at the Shangri-La Makati Hotel, Metro Manila, Philippines.

 

Good afternoon and Mabuhay to all of you. I am deeply honored to deliver this keynote address before so many distinguished jurists, lawyers, diplomats, business heads, civil society leaders, academics, and high government officials from different parts of the world gathered here today for this three-day Global Forum on Liberty and Prosperity.

In this keynote address, it is my purpose (1) to follow up and explain in greater breadth and depth the twin concepts of liberty and prosperity; (2) to expound on how the Global Forum was organized and structured; (3) to illustrate how the speakers and delegates may meaningfully participate; and (4) to discuss how the beneficent effects of these twin beacons of justice, as I am apt to call them, may be extended far and wide to the peoples of the world.

May I also say, at the outset, that it has been my personal crusade since joining the Philippine Supreme Court more than 11 years ago to actively espouse and propagate these twin beacons of justice. Upon assuming the chief justiceship of the Philippines last year, I publicly pursued them even more fervently. Indeed, they have become the cornerstones of my magistracy.
For that reason exactly, I embarked on a knowledge-sharing-cum-lecture circuit in May and June of this year. 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 Unites States, Spain, France , the Netherlands and the United Kingdom. In all my meetings with the various personalities and sectors mentioned, I was delighted to note the very warm reception given to Liberty and Prosperity. It was during those meetings that the format of this Forum was ironed out and initial invitations were extended.

I am thus grateful to, among others, World Bank (WB) President Paul Wolfowitz and Asian Development Bank (ADB) President Haruhiko Kuroda. Due to their inability to be physically present, both have graciously agreed to send video messages, which we will hear on Friday, October 20; US Supreme Court Justice Anthony Kennedy and US Court of Appeals Judge Clifford Wallace who, despite their unavoidable physical absence, have ensured their participation through video conferencing from their location in San Diego, California; as well as Chief Justice Guy Canivet of France and International Bar Association President Fernando Pombo Garcia, both of whom will personally present their views and experiences on these twin beacons.

I also thank those who have encouraged me to pursue my advocacy despite their inability to participate personally because of conflicts in schedule and other reasons. Among them are President Rosalyn Higgins of the International Court of Justice, based in the Hague; Chief Justice Willibord Davids of the Netherlands; President Francisco Jose Hernando Santiago of the Spanish Supreme Court; the Chief Justice of England and Wales, Lord Philipps of Worth Matravers; and Ms Karen Mathis, president of the American Bar Association.

On the same theme, several fora have also been conducted in my country over the past months. 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. This forum was followed shortly on August 24-25, 2006, by the National Forum on Liberty and Prosperity. 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. The resolutions passed during the forum outlined several plans of action on how to implement the twin beacons in our courts, in the legal profession, the academe, the government and society in general.

On top of these efforts, I wrote a book entitled Liberty and Prosperity. This book, together with a searchable compact disc (CD) version, will be circulated for the first time today to all delegates.

The lecture circuit and fora, as well as the book, have encouraged the members of our Supreme Court to sponsor this Global Forum to give the world community an opportunity to discuss Liberty and Prosperity. Fortunately, our aspirations drew the support of the United Nations Development Programme (UNDP), the World Bank, the 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).

In the next three days, we will share our national and sectoral experiences, mutually discuss the challenges confronting Liberty and Prosperity in various parts of the world, and draw lessons from them. As you may have noted from the program, we have invited a cross section of the global society to discuss the country experiences of Canada, Benin, Singapore, France, Argentina, Nepal, Russia, Guatemala, China, Egypt; and those of the bar associations, academic and judicial institutes, development institutions, other branches of government, and civil society.

I hope then that at the end of this 3-day forum, we shall have come to a mutual understanding of the principles of Liberty and Prosperity and mapped out common courses of action to carry them out globally. An example of a possible project is a global foundation for Liberty and Prosperity, which will serve as a venue for a continuing discussion and sharing of ideas, experiences, and best practices by the various sectors represented in this Forum. In this search, the foundation could also bestow international awards to outstanding personalities and programs advocating the twin beacons.

Let me now briefly go through various events that have given impetus to 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 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 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 now 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 limits.

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 expresion. [1] I am sure that many, if not most, of the countries represented in this Forum 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.

Recent Decisions Upholding Liberty

Very recently, our Supreme Court promulgated three landmark Decisions involving (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 landmarkReynolds v. Times Newspapers Ltd., [8] has been hailed as a triumph of the freedom of expression and of the press. The Lords of Appeal of the House of Lords, the court of last resort in the United Kingdom, 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 nongovernmental 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. Very recently, in Hamdan v. Rumsfeld [10] (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 [11] (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.

For sure, many other jurisdictions must have ruled on matters similar to those I have mentioned. Hence, we ask for your active participation, so that we may all learn from one another’s experiences, decisions and advocacies.

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 impel me to advocate a necessary—nay, indispensable—nexus between political liberty and economic prosperity, which I will explain shortly.

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 promote social 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). [12]

In the Philippines , our 1987 Constitution [13] 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.” [14] Our Constitution likewise demands the institutionalization of social justice. [15]

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.

For starters, Time magazine’s “Persons of the Year” for 2005—the world’s richest multi-billionaire couple, Bill and Melinda Gates—have staged their own campaign for vaccinations and public health care. Their target: to save 700,000 lives. [16]

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. [17]

Just last September of this year, billionaire financier George Soros announced that he was contributing $50 million to the Millenium Villages Project. This nongovernmental initiative seeks to show that closely focused development projects can alleviate severe poverty within a few years. [18]

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 a few days ago, on October 14, 2006. He and his Grameen Bank had pioneered micro credit 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 micro loans. [19]

Philanthropic endeavors in Asia have likewise brought back hope to the homeless, the blind, the poor, and the neglected. This year, six exceptional Asians and one exemplary organization were awarded the Ramon Magsaysay Awards [20] — Asia’s equivalent of the Nobel Prize. Later, one of these awardees, Mr. Antonio Meloto, will share with us civil society’s experience in arousing civic consciousness through the Gawad Kalinga Community Development Foundation. It 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”; [21] and why the ADB desires “to enhance the effectiveness and the accountability of the judiciary.” [22]

In the audio-visual presentation we have witnessed, ADB President Kuroda and WB’s Joachim von Amsberg discussed the necessary nexus between progress and a stable rule-of-law environment. Both agree that the rule of law forms the foundation of sustained economic development.

If I may paraphrase Mr. Amsberg, law and justice are basic ingredients of development. Thus, it is his submission that 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 is undergoing a massive law reform program, so that it may continue to play a critical role in the world economy.

In the light of these three developments, among several others, I am convinced 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 has 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.

Let me add that, as a rule, Philippine courts do not pass upon the merits or wisdom of economic policies. These are matters that have been left by our people to the President and Congress to evaluate and decide. [23]

This judicial no-interference rule on economic policy does not mean, though, that our courts in the Philippines will abdicate their duty of striking down “grave abuse of discretion.” As you may know, our judiciary has been vested by our Constitution with a unique duty to nullify not just legislative or executive acts that clearly violate the Constitution, the laws, or settled jurisprudence; [24] but also those that have been issued with arbitrariness, whim, caprice, bias or personal hostility. [25]

To the first set of acts—those contrary to the Constitution and the law—courts in general claim an inherent mandate flowing from judicial power. I suppose, though, that the second category is peculiarly Filipino. It traces its origin to the previous dictatorial regime, the magnitude and monstrosity of which were described earlier by our former President Corazon C. Aquino in our audiovisual presentation. [26]

Concretely, there have indeed been instances when courts had to perform a delicate balancing act between the demands of liberty and the needs of prosperity. In British Columbia Securities Commission v. Branch, [27] 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 are being proposed. For instance, Professor William Easterly, who has recently published a book entitled Elusive Quest for Growth, [28] opined that most economically advanced countries had adopted liberal democracy, in which human rights were zealously protected. [29] 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.[30] 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, [31] on the one hand; and, on the other, those whose stability may be traced to their openness to social, political, and economic change. [32]

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.” [33] 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. [34] The evidence supporting this theory, however, is hardly absolute.

Earlier, in the audiovisual presentation, Mr. Amsberg of the World Bank 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, the Filipinos may endure occasional hunger, but they will never tolerate injustice and indignity for long.

Closing

I have attempted, as best as I could, 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. I hope, though, that through an exchange of ideas, information, and best practices during this Forum, all countries and sectors represented may be able to evaluate the value of the shared experiences and to imbibe these as they may deem appropriate under their unique environmental circumstances.

Senator Angara, one of the leaders of our legislative branch, made an incisive point in the audiovisual presentation prior to my speech. He said that the matter of how best to calibrate the balance between liberty and prosperity must be left to the people of a particular country. Indeed, each country and each sector of society [35] has its own history, experience, temperament, economics, culture and politics, which should determine how viableLiberty 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.

I believe that should this Forum be able to discuss these varying approaches to balancing liberty and prosperity and later find some common areas from which some understanding may be culled and a program of action drawn, our gathering together during these three significant days in October 2006 would have been fruitful and successful.

Maraming salamat po.

__________

Keynote address delivered by Chief Justice of the Philippines , the Hon. Artemio V. Panganiban, during the opening ceremonies on October 18, 2006, of the three-day Global Forum on Liberty and Prosperity, at the Shangri-La Makati Hotel, Metro Manila, Philippines.

[1] ABS-CBN Broadcasting Corporation v. Commission on Elections (380 Phil. 780, January 28, 2000, per Panganiban, J.) In this case, the Court emphatically explained that, “when faced with borderline situations in which the freedom of a candidate or a party to speak and the freedom of the electorate to know are invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom.” This ruling recognizing public opinion polls as a species of the freedom of expression was echoed one year later in Social Weather Stations v. Comelec (357 SCRA 496, 501, May 5, 2001, per Mendoza, J.) In this case, the Court stressed that “because of the preferred status of the constitutional rights of speech, expression, and the press, a law prohibiting the publication of pre-election surveys is vitiated by a weighty presumption of invalidity.”

[2] For a sampling of how other countries have construed exit polls, please see Panganiban, Reforming the Judiciary 154-169 (2000).

[3] Senate v. Ermita, GR No. 169777, April 20, 2006. More accurately, the Court invalidated the major provisions of Executive Order No. 464. In simplest terms, the Decision held that Congress had the right to compel the appearance of executive officials in congressional investigations, because the power of legislative inquiry was as broad as the power to legislate. Hence, deemed unconstitutional were the provisions of EO 464. This executive order allowed the executive branch to evade congressional requests for information without properly invoking executive privilege in recognized instances. Nonetheless, the Court directed Congress to indicate, in its invitation to executive officials, the subject matter of the inquiry and of related questions, so that the President or the executive secretary could properly invoke executive privilege, if warranted.

To the extent that investigations in aid of legislation were to be generally conducted in public, the Court held that “any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress — opinions which they can communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. x x x.”

[4] Bayan v. Ermita, GR No. 169838, April 25, 2006. This ponencia, penned by Justice Adolfo S. Azcuna, stated thus:

“x x x[T]his Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expresion and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that ‘in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actiions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected to heightened scrutiny.’”

[5] David v. Arroyo, GR No. 171396, May 3, 2006. Writing for the majority in this case, Justice Angelina Sandoval-Gutierrez ruled as follows:

“All powers need some restraint; practical adjustments rather than rigid formula are necessary. Superior strength – the use of force – cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty.

“Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: ‘In cases involving involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak.’ Laws and actions that restrict fundamental rights come to the courts ‘with a heavy presumption against their constitucional validity.’”

[6] Bull n?16, Chambre sociale. http://www.courdecassation.fr/jurisprudence, last accessed on October 16, 2006.

[7] [2006] UKHL 44.

[8] [1999] UKHL 45.

[9] Recurso De Casacion Num. 1888/2001, Tribunal Supremo, Sala de Lo Contencioso-Administrativo, D. Enrique Lecumberri Marti, ponente.

[10] 548 U.S. ___ (2006).

[11] 542 U.S. ___ (2004).

[12] It is well to note that from the Universal Declaration of Human Rights, two solemn agreements emerged: (1) the Covenant on Civil and Political Rights; and (2) the Covenant on Economic, Social and Cultural Rights. Commentators on international law are wont to distinguish the two in terms of the executory character of civil and political rights as against the ideal or developmental character of economic and social rights.

[13] The following provisions of the Constitution, among others, mandate the State to promote economic prosperity:

Article II (Declaration of Principles and State Policies)

“Sec. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.”

“Sec. 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.”

Article XII (National Economy and Patrimony)

“Sec. 1. The goals of the national economy are 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.

“The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

“In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.”

“Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.”

“Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.”

[14] Art. XII, Sec. 1.

[15] Art. XIII, Sec. 1:

“The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

“To this end, the State shall regulate the acquisition, ownership, use and disposition of property and its increments.”[15]

[16] Bono, the other Time “Person of the Year”, on the other hand, “charmed and bullied and morally blackmailed the leaders of the world’s richest countries into forgiving $40 billion in debt owed by the poorest.”[16] He believes that money saved from debt relief can be spent, instead, on health and schools rather than interest payments.

[17] This sum will be given gradually, beginning in July this year and continuing every year for as long as one of the couple — Bill, 50; or Melinda, 42 — is active in the Gates Foundation. But each installment must be spent in the year it is given. For 2006, Buffett has given 602,500 Berkshire B shares valued at about $1.5 billion, which must be spent by the Gates Foundation within the year.

[18] http://allafrica.com/stories/200609190864.html accessed on October 6, 2006.

[19] Philippine Daily Inquirer, October 16, 2006, p. 1.

[20] The 2006 Ramon Magsaysay Awardees are: Eugenia Duran Apostol, who was cited for her unrelentingly espousal of truth, independence and integrity in Philippine media; Ek Sonn Chan, who found fulfillment in providing safe, clean, and cheap drinking water for millions of Phnom Penh’s poor residents; Arvind Kejriwal, who made it his relentless crusade to educate New Delhi’s poorest citizens on their right to information and to empower them to fight corruption; Antonio Meloto who, together with the Gawad Kalinga Community Development Foundation, has demonstrated the meaning of deep commitment by building homes for slum dwellers in the Philippines; Dr. Sanduk Ruit who, by his abiding love, has bestowed munificent gifts of sight to the poverty-stricken people of Nepal; and Park Won Soon, who has fostered social justice, fair business practices, clean government, and a generous spirit in South Korea’s young democracy.

[21] See Legal and Judicial Sector Manual (2002), a World Bank publication.

[22] Law and Policy Reform, ADB Report, January 2005, pp. 26-28

[23] An example of this deference to economic policies can be found in Tañada v. Angara (338 Phil. 546, 604-605, May 2, 1997, per Panganiban, J.). In this case, the Philippine Supreme Court upheld the Senate’s consent to the Philippines ratification of the World Trade Organization (WTO) Agreement. This laissez-faire judicial policy on economic issues was reiterated in La Bugal-B’laan Tribal Association v. Ramos (445 SCRA 1, December 1, 2004, per Panganiban, J.). In affirming the constitutionality of the Mining Law allowing 100-percent foreign investments in large-scale mining, the Court held thus:

“x x x. The Constitution should be read in broad, life-giving strokes. It should not be used to strangulate economic growth or to serve narrow, parochial interest. 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.”

[24] Republic v. COCOFED, 423 Phil. 735, December 14, 2001.

[25] Benito v. Comelec, 349 SCRA 705, January 19, 2001; Defensor-Santiago v. Guingona Jr., 359 Phil. 276, November 18, 1998; and Philippine Airlines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994.

[26] Consistent with this “grave abuse” exception to the no-interference rule, the Supreme Court has nullified many contracts entered into by our government. Some of these contracts involved the reclamation of portions of Manila Bay, the construction and operation of the new Manila International Airport Terminal, and the automation of the 2004 national elections. (_Chavez v. Public Estates Authority,_ 384 SCRA 152, July 9, 2002; 451 Phil. 1, May 6, 2003; and 415 SCRA 403, November 11, 2003; per Carpio, J.; Agan v. PIATCO, GR No. 155001, May 5, 2003 and January 21, 2004, per Puno, J.; Information Technology Foundation of the Philippines v. Commission on Elections, GR No. 159139, 419 SCRA 141, January 13, 2004, per Panganiban, J.) Because of these decisions, our courts have been pilloried as unduly interfering in business and economic matters. Our critics, however, conveniently overlook the fact that, under our Constitution, our courts have the duty not merely to settle actual controversies involving legally demandable and enforceable rights. They must also strike down acts of any instrumentality of government whenever those acts have been entered into “with grave abuse of discretion.”

[27] 2 S.C.R. 3, April 13, 1995.

[28] MIT Press, Cambridge and London. Romain Wacziarg of Stanford University describes Easterly’s work as a “superb book [that] draws on what we have learned from almost two decades of cross-country growth comparisons” about “supposedly miracle growth policies [that] have proven disastrous or ineffective,” but wisely “avoids proposing a new panacea x x x.” Wacziarg, Review of Easterly’s The Elusive Quest for Growth, XL Journal of Economic Literature 907-918, September 2002.

[29] The discussion was summarized by Prof. Alex Magno, a participant in a relevant roundtable discussion, in his column in the Philippine Star on January 19, 2006.

[30] Ian Bremmer, “The J Curve: A New Way to Understand Why Nations Rise and Fall (2006)”. The framework is repesented by the “J Curve.” The vertical axis of the curve measures a state’s stability; the horizontal axis, its “openness.” Nations higher on the graph are more stable; those lower are less stable. Nations to the right of the dip in the “J” are more open; those to the left are less so. http://www.jcurvebook.com/ and http://en.wikipedia.org/wiki/J_curve, last accessed on October 14, 2006.

[31] Among these countries are North Korea, Iran, and Cuba.

[32] France, the United States, and Japan have been identified to be among these countries.

[33] “Law and Finance,” Journal of Political Economy, Vol. 106, No. 6, 1113-1155 (December 1998).

[34] 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.

[35] The religious sector, too, has genuine concerns about the alleviation of poverty and the sharing of resources. Thus, in the gospel last Sunday, October 15, 2006, Catholics throughout the world were reminded of the young rich man’s question, “What must I do to inherit eternal life?” and of the Lord Jesus’ answer, “Go, sell what you have and give to the poor, and you will have treasures in heaven; then come, follow me.” (MKA 10:17-30)

Attributes of a Good Independent Director

* Address delivered by retired Chief Justice ARTEMIO V. PANGANIBAN before the Good Governance Advocates & Practitioners of the Philippines on October 19, 2015 at the Dusit Hotel, Makati City.


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Let me thank your President Gil L. Gonzales for inviting me to speak before your forum on the general theme of “BOARD INDEPENDENCE: Reality or Myth?” This theme is quite provocative and timely in view of the current effort of the Securities and Exchange Commission to update the Corporate Governance Blueprint.

At the outset, let me stress that I favor the upgrading of corporate governance, even if I have objections to some proposed regulations, which in my humble view are illegal and/or unreasonable.

I was asked to speak specifically on the topic, “The Attributes and Challenges of a Great Independent Director.” This topic is quite provocative too because it assumes that yours truly is a “Great Independent Director,” an honor I would like to humbly decline. The word “great” intimidates me for it implies “fantastic” or “extraordinary” expertise.

Expertise is easily demonstrated in the science of medicine. During my parents’ time, physicians used to call on patients’ homes and cured all kinds of diseases. Then, specialization came and doctors became experts only of the brain, or of the heart, or of the kidney, and so on.

This reminds me of my high school friend who studied medicine at the best university in Diliman, Quezon City and who specialized abroad on the diseases of the eyes. Due to difficulties with my right eye, I visited him at his private eye center. After his assistants preliminarily examined me with microscopes and gadgets and applied drops and ointments in and around my right eye, I was finally ushered into his private room.

“Art, I am sorry I cannot help you,” he solemnly began. “Why not? You are a great eye expert, why can’t you help me?” I protested. “Well,” he smiled sheepishly, “it’s because the problem is in your right eye. I am a great expert only of the left eye.”

Yes, an expert is one who knows more and more about less and less. So the ultimate expert is one who knows everything about nothing!

I hope my doctor-friends will forgive me for that joke. Nonetheless, please permit me to avoid using the word “great.” I would rather just speak of a “good” independent director, a more modest and achievable ambition. So, may I respectfully plead that my topic be changed to “The Attributes of a Good Independent Director.”

Let me divide my address into three general subjects culled from the very words of the topic assigned to me: Good Independent Director or GID. Permit me, however, to reverse the sequence; the first topic would be about being a director, the second, about being independent, and the third, about being good.

 

About Being a Director

To begin with, a GID must own at least one share of stock and elected to the Board of Directors in accordance with the Corporation Code, as well as the Articles of Incorporation and Bylaws of the corporation concerned.

All directors, whether executive, non-executive or independent, are trustees or fiduciaries of the corporation. Their prime duty is to promote and uphold the welfare of the corporation which has a legal personality, attributes, goals, and undertakings that are distinct and separate from its shareholders. As such, directors are expected to promote and defend such separate and distinct corporate characteristics above and beyond their own individual or private interests. Their major duty is to help the corporation grow and profit legally, honestly, reasonably and ethically.

Because of their unique background, special training, wide experience and vast contacts, GIDs have – to use a common computer terminology – “killer apps.” Thus, aside from their special duty of being enforcers of good corporate governance, GIDs dispense balanced advice in special fields like advance technologies, economics, law, finance, acquisitions and mergers, government relations, and the like.

GIDs normally have high moral ascendancy in the business community. They are chosen not only for their intellectual expertise but also for their trustworthiness, objectivity and fairness. They may be former Cabinet members, esteemed business executives, outstanding professionals, or retired members of the judiciary. They can become good referees and mediators to cool the competitive tension not only among shareholders and directors within the same company but also between the major shareholders and directors of one conglomerate locked in bruising battle with their counter-parts in competing conglomerates.

 

About Being Independent

Let me now go to the second major topic: about being “independent.” What differentiates IDs from executive and non-executive directors is the very name they carry, and that is: they are “independent.” But what does “independent” mean? The Securities Regulation Code or SRC does not really “define” what IDs are; it merely states what they are not, as follows:

“SEC. 38. Independent Directors. – … an independent director shall mean a person other than an officer or employee of the corporation, its parent or subsidiaries, or any other individual having a relationship with the corporation, which would interfere with the exercise of independent judgment in carrying out the responsibilities of a director.”

The Revised SRC Rules use this same negative definition-by-exclusion approach, reminiscent of the Ten Commandments, by listing down what an ID is not, like (1) he/she is not an owner of more than two percent (2%) of the capital stock, (2) not related to a shareholder owning at least 10% of the capital stock, (3) not acting as a representative of any substantial shareholder, (4) not employed in any executive capacity within the last two years, (5) has not been a professional adviser of the company also within the last two years, and (6) has not and does not engage in transactions with the corporation, other than arms length and immaterial ones.

In short, essentially, IDs are corporate fiduciaries or directors who do not have – directly by themselves, or indirectly through their privies (like professional firms, business entities or relatives) – any relationship with the corporation, or its subsidiaries and affiliates, or its major shareholders or their privies, that may affect their objectivity in performing their duties as such fiduciaries or directors.

Aside from the laws passed by Congress, the role and work of IDs is also covered by regulations of various executive agencies, mainly of the Securities and Exchange Commission, as well as of specialized agencies for special types of businesses, like the Bangko Sentral ng Pilipinas for banks, the Land Transportation Franchising and Regulatory Board for busses and taxis, Civil Aeronautics Board for airlines, etc.

One thing is clear however. These regulatory agencies exercise merely delegated powers from Congress and cannot expand their authority beyond what is given them by law. Hence, they cannot restrict or limit rights and powers given by law to corporations and shareholders. In our system of government, the private sector is the engine of economic growth. The role of the government is to inspire and facilitate private entrepreneurship, intervening only to check avarice and to level the playing field.

This is why I have consistently resisted attempts to limit, through administrative fiat, the terms of office of directors, or their number of seats, or their age qualifications. The Corporation Code has granted shareholders the right to vote and be voted into office as directors without any such limitations. Investors buy more expensive voting shares precisely to enjoy these prerogatives to freely elect and be freely elected directors.

The right to vote and be voted directors, just like the right to suffrage in a democracy, is a basic right in a corporate polity that cannot be restricted or limited by mere administrative regulation. Only Congress has the power to legislate on them. Basic is the admonition in several Supreme Court decisions that administrative regulation merely implements legislations and cannot extend, limit or amend them in any wise, even with the best of intentions. A usurpation of legislative power by an administrative agency or official is criminally, civilly and administratively sanctioned by law.

One of the strictest proponents of good corporate governance is the United States where, because of lessons learned from actual corporate debacles, the Sarbanes-Oxley Law (SOX) was enacted. Yet, PLDT – the only Philippine company listed in the New York Stock Exchange – and its directors are not required to observe term, seat or age limits.

What then can our administrative agencies do to regulate the work of IDs? Answer: They may regulate pursuant to the standard of delegation given by Congress to the SEC in the Securities Regulation Code, namely, that an ID is without a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. Accordingly, the SEC may, as it had already, require IDs to take periodic seminars on corporate governance, make them compulsory chairs of certain board committees, compel stricter disclosures of private interests, etc. It can also require IDs to render annual reports of their work, especially in regard to related party transactions and disclosure rules.

The negative covenants imposed by law on independent directors are meant to free them from the baggage of self-interest so they could effectively check the excesses or over indulgence of executives who wield corporate powers and control corporate funds. Normally, these executives are nominees of the majority shareholders, and many times, they are the majority shareholders themselves.

On the other hand, IDs are expected to uphold zealously the laws of the land, the articles and bylaws of the corporation, the canons of corporate ethics and the manual of corporate governance. All in all, I believe IDs were created by law to be the guardians of good corporate governance.

 

About Being Good

Now, let me move on to the third topic which is about being “Good.” What are the attributes or qualities of a GID? In my humble opinion, there are at least five major attributes.

The first is a thirst for knowledge. This includes a thirst for:

(1) a basic knowledge of the nature, duties, responsibilities and functions of an ID; this means a working idea of the Corporation Code, the Securities Regulation Code and the basic issuances of the SEC and of the specialized agencies that oversee the special business of the companies concerned, like the BSP, LTFRB and CAB, as earlier mentioned.

(2) a basic knowledge of financial statements and generally accepted accounting and audit principles and internal controls. One need not be a certified public accountant, like one need not be a lawyer, but an ID needs to be able to read and understand a balance sheet, an income statement and a cash flow report, at the minimum.

(3) a basic knowledge of the corporation they serve – – its vision, mission, core values, people, corporate culture, specific business directions, and management.

Of course, GIDs are not expected to memorize these laws, financial data and corporate facts. But they must have a general understanding thereof, and an eye for details such that they can easily spot, compare and challenge items, ratios, variances, etc in management reports.

         The second attribute of a GID is an ample dose of courage. As I earlier discussed, the implicit assumption and unspoken expectation behind the creation of the post of independent director is the duty to fiscalize and counter-check what the other directors and the management are doing, to voice contrary opinions, and cast negative votes when necessary. They should at all times be advocates of transparency and timely disclosures. They should scrutinize related party transactions and insist on a faithful observance of good corporate governance.

         This fiscalizing role and responsibility of IDs is no small matter. Remember that they are nominated by the Nomination Committee of the Board of Directors, and elected by the majority shareholders, who also elect all the other directors who in turn appoint and install the management. Yet, IDs are expected to countercheck the very people in whose hands their nomination and election to office depend.

As a comparison, if judges were to be appointed by the President yearly and their compensation determined by Congress also yearly, can we expect them to be truly independent? By the same token, can we truly expect full independence from IDs who depend on the votes of the majority to be elected yearly, and on the board of directors (in which they are a minority) to fix their compensation periodically?[1] Surely, instead of restricting the terms of office and prerogatives of IDs, the first order of the day should be to strengthen their independence and integrity so they can perform their lonely work more effectively.

Instead of arbitrarily limiting their terms or their seat count, or ages, good IDs should be encouraged to stay on. Surely, the reappointment of the present BSP Governor to another term of six years (for a total of 12 years) did not diminish his independence and integrity. Quite the contrary, I think his longevity in office has magnified his value. So, too, who can say that the incumbent Chief Justice has less independence and integrity just because she would have a record term of 20 years in the Supreme Court, two years as associate justice and 18 years as Chief Justice? Who can say that the respected senior Justice Antonio T. Carpio has compromised his independence for having served 14 years in the Court and counting? And who can say he cannot discharge multiple undertakings beyond his many judicial responsibilities when he is the most vocal advocate of the Philippine claim in the West Philippine Sea?

Closer to our corporate world, who can say that former Prime Minister Cesar Virata, former BSP Governor Jose Cuisia, former Secretary of Finance and incumbent PSE Chair Jose Pardo, former Finance Secretary Roberto de Ocampo, veteran banker Xavier Loinaz, and of course, the venerable Washington SyCip[2] have lost their independence and integrity just because their terms, seats and ages as IDs have not been limited? True, they are very busy persons. But equally true is the adage that if you want something done well and on time, you should give it to a busy person.

Yes, who among our public officials, from whom independence is required, and who among our iconic IDs, have lost or diminished their objectivity due to their longevity in office, or multiple directorships, or old age? Instead of indulging in vague speculations or alleged foreign practices with no demonstrated local relevance, critics – with due respect – should prove their claimed need for government-imposed limitations by pointing to flesh and blood malevolent Filipino officials and corporate directors who have dimmed their independence and integrity due to their longevity in office, multiple seats or old age.

In the event IDs misbehave and lose their independence and integrity regardless of their term, seats or ages, who can take them out? Answer: In our system of free enterprise, the shareholders. They can provide restrictions or limitations, if they want to, in their companies’ Articles of Incorporation, or use their ballot during corporate elections, or their numerical strength during board meetings, or other ways now practised by some corporations and shareholders.

One final word on this point. Because of their lack of security of tenure and compensation, IDs need a lot of emotional intelligence to know when to intervene and how to intervene so the other directors will not be unnerved unnecessarily by their objections. Indeed, IDs should always find the right way to do the right thing at the right time and for the right reasons.

The third attribute of GIDs is the ability to ask searching questions and the corresponding passion to pursue the correct and timely answer. The business of publicly-listed corporations is often complicated, and many times, even the most assiduous IDs cannot have enough knowledge to guide them in making intelligent decisions or in fiscalizing management. Only by asking searching questions can they really be guided in their work.

Sometimes, the inability to get sufficient information is borne out of a need for confidentiality in protecting the secrets of the corporation. If an ID is not trusted enough to hold company secrets, then he or she has no place in the corporation. Resignation is the only respectable option in such a situation.

In my case, before accepting an independent directorship, I make sure I am able to work with the management and the controlling shareholders. If I cannot, then I do not accept the directorship. This is particularly true of subsidiaries of foreign companies. When asked to be an ID of these entities, I would first want to meet the ultimate decision maker abroad to find out whether I can work with him or her. 

         The fourth attribute of a GID is integrity. This flows necessarily from the earlier attribute of courage. When I was still in the Supreme Court, I was asked what I understood by the word integrity, which is required by the Constitution of all members of the judiciary. This was my answer: “Integrity encompasses not mere honesty; it includes intellectual decency and a deep sense of personal honor. Persons of true integrity judge themselves not only by their outward acts but by their intentions which are known only to them and to God. To have integrity implies moral courage, which means not only theoretical bravery in battle but, a priori, a purity of spirit and clarity of conscience.” I believe this definition is applicable to IDs too. Integrity includes the voluntary refusal to serve or to be re-elected due to one’s inadequacy or inability or unwillingness to discharge the responsibilities of a good independent director.

         The fifth attribute is a passion for hard work, and for organizing thoughts and communicating them well – verbally and in writing. While the IDs’ main work is attendance and active participation in board and committee meetings, the back-breaking job is in the preparation.

For instance, as an ID of a large bank, I am sent a packet of background information on credit and loan applications amounting to several billions of pesos. They are several inches thick and include footnotes written in minute font sizes. I normally reserve an evening to pour over these tomes for several hours to be ready for the board meeting. These evening sessions, free from the hustle and bustle of the day, provide me the solitude to concentrate and read fast, picking on the essentials and skipping the routinary and non-essentials. Fortunately, even at my advance age, I still have 20/20 vision thanks to the laser cornea replacement surgery I underwent in 2008.

Another example: Upon being elected ID of the largest petroleum company in our country, I used a helicopter to view the nearly $3-billion refinery modernization program of the company and to meet with the engineers, contractors and in-plant managers so I would have a good idea of the project.

 

Conclusion

Before I end, let me summarize the challenges that confront good independent directors. One, GIDs must first and foremost be good fiduciaries who owe complete fidelity to the corporation they serve, above and beyond their private and personal interest. Their main duty as such fiduciaries is to help the corporation grow and profit legally, honestly, reasonably and ethically. Because they do not contribute money or resources to the company, they need to make up for this inadequacy by providing a “killer app,” a special skill or quality that make them valuable corporate trustees.

Two, GIDs must live up to their mandate of independence; that is, they must be free of the prohibited relationships that may diminish their objectivity in performing their duties. Their main responsibility as IDs is to be guardians of good corporate governance, and to ferret out, when necessary, illegal, dishonest, unreasonable and unethical practices that violate the law, or the trust of the shareholders and of the public in general. This includes resisting illegal and unreasonable government regulations.

Third, they must have at least five attributes: an unquenchable thirst for knowledge, an ample amount of courage, an uncanny ability to ask searching questions, an unassailable integrity, and a consuming passion for hard work.

Maraming salamat po.

_______________________________

[1] Compensation, other than per diem, is subject to the approval of a majority vote of the shareholders, unless this had been previously delegated to the board of directors.

[2] According to an Inquirer article on Sept. 27, 2015 (“At 94, Mr Global slows down a wee bit”), “In the Philippines alone, he is a director or an adviser of 38 – that’s right, 38 – of the largest corporations, financial institutions and foundations.”

5th Annual Report

 (January 1, 2015 to December 31, 2015)

I. Introduction

            Officially established on October 27, 2011, the Foundation for Liberty and Prosperity is now on its fourth year of operation. Ably led by its Board of Trustees—namely Chief Justice (CJ) Artemio V. Panganiban, CJ Hilario G. Davide Jr., Washington Z. Sycip, Edilberto C. De Jesus, Elenita C. Panganiban, Maria Theresa P. Mañalac, Jennifer J. Manalili, Evelyn T. Dumdum and Joel Emerson J. Gregorio—the FLP has steadily gained recognition from its stakeholders and partners through its various programs, projects and activities.

The Foundation’s vision is a society that fully appreciates the necessity of “Liberty & Prosperity” and their essential interdependence. It underscores FLP’s core philosophy, that liberty and prosperity are mutually inclusive. The Foundation’s mission is to educate the people regarding this fundamental and essential interrelation between liberty and prosperity by initiating, maintaining, organizing, and supporting projects aimed at promoting, educating, training, developing, assisting and protecting liberty and prosperity under the rule of law.

 

FLP Officers

The FLP continues to serve its purpose through its FLP officers, namely CJ Artemio V. Panganiban (Chairman of the Board), Evelyn T. Dumdum (President), Rebecca G. Felix (Treasurer), Joel Emerson J. Gregorio (Corporate Secretary) and its recently hired Executive Director and Chief Operations Officer, Martin Angelo L. Esguerra. In addition, the chairs of the various standing committees remain—CJ Artemio V. Panganiban (Executive Committee), Washington Z. Sycip (Finance Committee), CJ Hilario G. Davide Jr. (Governance Committee), and Edilberto C. De Jesus (Education Committee).

The first batch of officers was CJ Artemio V. Panganiban, Chairman of the Board, Maria Elena P. Yaptangco, President; Evelyn T. Dumdum, Executive Vice President; Elenita C. Panganiban, Treasurer; and Joel Emerson J. Gregorio, Corporate Secretary.

 

II. Ongoing Programs and Projects

            The FLP was founded to perpetuate the core judicial philosophy of then Chief Justice Artemio V. Panganiban—that jurists and lawyers should not only safeguard the liberty of our people but must also nurture their prosperity under the rule of law. In the first three years since its incorporation, FLP focused on the following activities: (1) the “Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity,” (2) the official FLP Website (www.libpros.com), and (3) the “Liberty & Prosperity Journal,” hitherto an e-newsletter.

 

Professorial Chairs Program

As the flagship project of the Foundation, the Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity is being implemented for three years now, following its launch on September 18, 2012 at the Metrobank Auditorium, Makati City. The Metrobank Foundation partnered with the FLP in this endeavor and has so far donated a total of One Million Four Hundred Thousand Pesos (P1,400,000.00) in co-sponsorship of the program.

FLP started with the appointment of nine (9) deans of distinguished law schools and the Chancellor of the Philippine Judicial Academy (PhilJA). The Foundation wanted to encourage educational institutions and law schools to research and propagate the philosophy at the level of the academia (including training of students, professors, lawyers, and judges). The outputs varied in form from traditional lectures, debates, as well as moot court competitions. The written lectures from the chair holders have been uploaded to the FLP website and published in the Liberty & Prosperity e-newsletter. These shall be compiled and will eventually be published in a book and/or in other modes of communications under the information, education and communication projects of FLP.

The first batch of recipients include the following deans of the top nine (9) law schools in the Philippines, plus a tenth chair in the Philippine Judicial Academy (PhilJA). These were—surnames in alphabetical order—(1) Atty. Reynaldo U. Agranzamendez (Dean, University of the Cordilleras College of Law); (2) retired Supreme Court Justice Adolfo S. Azcuna (Chancellor, PhilJA); (3) Atty. Andres D. Bautista (Dean, Far Eastern University Institute of Law); (4) Atty. Sedfrey M. Candelaria (Dean, Ateneo de Manila School of Law); (5) Atty. Danilo L. Concepcion (Dean, University of the Philippines College of Law); (6) Atty. Jose Manuel I. Diokno (Dean, De La Salle University College of Law); (7) Atty. Nilo T. Divina (Dean, University of Santo Tomas Faculty of Civil Law); (8) Atty. Joan Sarausos-Largo (Dean, University of San Carlos School of Law and Governance); (9) retired Supreme Court Justice Eduardo B. Nachura (Chairman, Arellano University Law Foundation); and (10) Atty. Manuel Quibod (Ateneo de Davao University College of Law). Regrettably, the 10th appointee failed to respond to FLP’s cordial invitation and appointment letter; hence he was eventually and decidedly removed from the list of chair holders.

Two (2) chair holders were renewed, namely (1) Atty. Sedfrey M. Candelaria (Dean, Ateneo de Manila School of Law); and (2) Atty. Joan Sarausos-Largo (Dean, University of San Carlos School of Law and Governance). In addition to the roster of distinguished lecturers, we have recently included Atty. Melencio S. Sta. Maria, Dean of the Far Eastern University – Makati.

Notably, Dean Sedfrey M. Candelaria delivered his commitment in full. The Ateneo Law School Dean delivered his second public lecture entitled “Comparative Analysis of the Memorandum of Agreement on Ancestral Domain and the Framework Agreement on the Bangsamoro” on November 29, 2013. Thereafter, he organized an international moot court competition at the Ateneo Justitia Hall from March 4 to 5, 2014.

Marking the second anniversary of the Professorial Chairs on Liberty and Prosperity (September 18, 2014), Deans Joan Sarausos-Largo and Mikhail Lee L. Maxino delivered their public lectures in September and November 2014, in Cebu City and Dumaguete City, respectively.

In summary, the table below shows the output of each chair holder as well as recent updates, including future deliverables:

 

CHAIR HOLDER OUTPUT STIPEND RECEIVED Updates
1 Reynaldo Agranzamendez (Cordilleras)

 

1 lecture (October 2013)

 

PhP 100,000

 

1 lecture pending

 

2 J. Adolfo Azcuna (PhilJA)

 

1 lecture (April 2013)

 

PhP 100,000

 

1 lecture pending

 

3 Andres Bautista (FEU)

 

1 lecture (February 2014)

 

PhP 100,000

 

Will deliver 1 lecture

 

4 Sedfrey Candelaria (Ateneo)

 

2 lectures, 2 debates (September 2012, March & Nov 2013, March 2014)

 

PhP 400,000

 

Fully complied, eligible for 3rd batch of appointments

 

5 Danilo Concepcion (UP)

 

NONE

 

0

 

Will deliver a lecture on the integration of the practice of law within ASEAN by October 2015

 

6 Manuel Diokno (La Salle)

 

1 lecture
(November 2012)
PhP 100,000

 

Will deliver 1 lecture with focus on economic rights

 

7 Nilo Divina (UST)

 

1 lecture (February 2014)

 

PhP 100,000

 

1 lecture pending

 

8 Joan Sarausos-Largo
(San Carlos Cebu)
2 lectures, 1 debate
(March & August 2013, September 2014)
PhP 300,000

 

1 pending lecture

 

9 Melencio S. Sta. Maria (FEU Makati)

 

NONE

 

0

 

Will deliver 1 output

 

10 Mikhail Lee L. Maxino (Siliman University)

 

1 lecture (November 2014)

 

PhP100,000

 

 

FLP Newsletter 

The Foundation published and distributed its e-newsletter “Liberty & Prosperity Journal” by the second quarter of 2013. These were received in PDF format by FLP’s network of VIPs, stakeholders, and academics via email. The ten professorial chair holders likewise received copies of the e-newsletter and promised to disseminate them to their respective law schools for the benefit of students and faculty alike. FLP has so far released six (6) e-newsletters with the two most recent issues (Volume II Issue 4 and Volume III Issue 1) completed in time for the Philippine Council for NGO Certification (PCNC) visit last March 16, 2015. Fifty (50) copies of the last two issues were likewise printed for limited distribution. The Foundation plans to source funds from the World Bank for the mass printing and distribution of these newsletters.

 

FLP Website

            The Foundation’s website has undergone some changes, most notably its new landing page. Visitors to the site www.libpros.com will now arrive at the “about” page that has been redesigned to feature the two most recent article and/or activity of the foundation as well as an active slide showing notable events and activities. This gives the website a more dynamic feel as compared to the previous layout. Updates with regard to the FLP Officers were also included. New articles, activities and events are continuously being updated. The Secretariat will continue to work with the site’s administrator, Mr. Kristian Jeff C. Agustin, in order to further improve it.

 

 

III.    Recent Developments in 2015

FLP Secretariat and Acquisition of PCCI Property

In order to expedite ongoing projects as well as implement future programs, the Foundation has begun its planned establishment of an FLP Secretariat. FLP started by hiring a chief operating officer to run the day-to-day operations of the secretariat. However, in order to hire additional support staff and meet its operational and administrative expenses, the Foundation needs a steady stream of funds. For this purpose, the Foundation—through the Chairman—has requested contributions from several generous donors[1] for the purchase of a 709 sq. m. property located at the PCCI Corporate Center in Makati. A small portion of the said property shall serve as the FLP Secretariat’s headquarters, while the rest shall be leased out to provide funds for the FLP Secretariat’s operational expenses. The Foundation was able to purchase the property in December 2015. A Deed of Dale was signed between Lopez Holdings Corporation and FLP on December 23, 2015.

Pursuant to its earlier verbal commitment, the Toyota Motors Philippines Corporation donated one (1) Innova on March 15, 2015 for the use of the Secretariat. This will facilitate the implementation of the various projects of the Foundation, particularly through liaising with partners, donors and stakeholders as well as delivering FLP output to target beneficiaries of its programs/projects.

 

ALA General Assembly and ASEAN Chief Justices Summit

As part of the Foundation’s thrust on information, education and communication programs, FLP recently co-sponsored the ASEAN Law Association (ALA) General Assembly and the ASEAN Chief Justices Summit together with the ALA and the Supreme Court (SC) with financial assistance from PLDT and the San Miguel Group. It was the FLP Chairman who suggested the theme for the event, i.e., “Sharing Prosperity at the Crossroads of ASEAN Integration – the Legal Challenges.” The Foundation also provided technical and financial assistance, particularly with regard to the airfare expenses of the Chief Justices from Myanmar, Cambodia and Laos and their respective spouses. FLP Chairman CJ Panganiban also delivered a speech on entrepreneurship and the FLP philosophy during the ALA Delegates’ Luncheon. The ALA General Assembly was held at the Makati Shangri-La Hotel last February 26, 2015 while the ASEAN Chief Justices Summit was in Boracay from March 1 to 2, 2015.

 

Accreditation with the PCNC

On June 9, 2015, the Board of Trustees of PCNC approved the Foundation’s application for accreditation and resolved to endorse the same to the Bureau of Internal Revenue for the issuance of a Certificate of Donee Institution. This came after the site visit by the representatives from PCNC conducted on March 16, 2015. After going over the documents FLP prepared for their review and conducting interviews with members of the BoT and FLP staff as well as the Deans and law students invited to participate during the site visit, PCNC shared their observations and recommendations. Most notable of these were the need to come up with an operations manual, financial management procedures, the establishment of an administrative structure and revised organization structure as well as guidelines for volunteers. As it were, all these have been complied with as FLP now has a Manual of Operations and Financial Management Procedures duly approved by the Board of Trustees.

 

IV. Future Plans and Direction

            With the planned establishment of the FLP Secretariat, the Foundation will also begin to implement the following programs and projects within a three to five year program framework:

 

IEC and ICT Projects

Apart from the information dissemination efforts of the Foundation by means of e-newsletters and its official website mentioned above, FLP will seek World Bank (WB) sponsorship of its ICT (Information and Communication Technology) and IEC (Information, Education, and Communication) projects. Also, the Foundation will spearhead the reconvening of the Global Forum on Liberty and Prosperity on October 2016, marking the 10th year of the first one in 2006. These high-profile projects are lined up to elevate FLP’s philosophy to the international arena—to gain traction and support outside the Philippines.

 

Centers for Liberty and Prosperity

On April 13, 2015, FLP met with Dean Melencio S. Sta. Maria of FEU Institute of Law (FEU-IL) to discuss, inter alia, the establishment of the Center for Liberty and Prosperity within the school premises. A space has already been provided for this and it was agreed that a draft Memorandum of Agreement (MOA) will be transmitted to FEU-IL for consideration of the Board. Dean Sta. Maria, for his part, undertook to take it up with the President of FEU-IL. Meanwhile, a work plan is being prepared by the FLP Secretariat.

As regards the Center for Liberty and Prosperity at the Ateneo Law School in Rockwell, the Ateneo Law School has assured us that a space will be provided for said purpose at the annex building being constructed and the details will be discussed soon after the constructions are finished.

 

Coffee Table Books on the Professorial Lectures
and Speeches of CJ Panganiban

FLP also had a meeting last April 15, 2015 with the Metrobank Foundation regarding the updates on the FLP Professorial Chairs as well as the publication of two (2) coffee table books: one, a compilation of the lectures and output delivered under the CJ Panganiban Professorial Chair Program; and two, a compilation of selected speeches of CJ Panganiban. Metrobank Foundation agreed in principle to sponsor said coffee table book projects and offered to assist FLP in undertaking the same considering that they have had several similar projects.

 

More Proactive Advocacy Program

As part of its thrust on education and information dissemination, FLP will organize a contest among students (candidates of doctor of jurisprudence) for best thesis/dissertation or its equivalent in law schools not offering the Juris Doctor program, that espouses the philosophy of liberty and prosperity under the rule of law. This would foster more scholarly studies on FLP’s judicial philosophy, encourage critical thinking and analysis and eventually, a synthesis on the legal theory and judicial philosophy of the Foundation.

 

Student Scholarships

Another program for education, FLP will provide scholarships for deserving law students. The intention is to cultivate the seeds of FLP’s judicial philosophy and thus encourage future lawyers to build their legal careers in promoting liberty and prosperity under the rule of law, becoming catalysts for its development and propagation. FLP met with Mr. Philip Sing, the Head of the Tan Yan Kee Foundation, and discussed partnership in bringing this project to fruition.

 

Basic Education on the Rule of Law Program

The Foundation will organize a program that teaches the rule of law to elementary students. FLP believes that young students represent the next generation of the country, so this will be planting seeds for the future.

In connection with this, the President and the Executive Director met with Mr. Jonas Turingan of Libertas last April 17, 2015 to discuss the continuation of the public education on the rule of law or PERLAS project which the Foundation aims to revive and implement under the auspices of the World Bank with emphasis on poverty alleviation and education. FLP seeks to tap the World Bank and other foreign and local funding sources in order to implement this major program as part of its information, education and communication thrust. Mr. Turingan has committed to submit a concept note for this program.

Together with the More Proactive Advocacy Program and the Student Scholarship program, these three programs represent FLP’s three-pronged education-centered thrusts in propagating, evolving and developing its core philosophy.

 

Support to the Reform Program of the Judiciary and the Ombudsman

In terms of its commitment to reforms, FLP plans to work closely with the SC and the Office of the Ombudsman in establishing a reform program patterned after the SC’s Action Program for Judicial Reform (APJR). The Foundation is planning to once seek the assistance from the World Bank (which provided the funding for the APJR) and other international funding institutions in this endeavor.

 

Legal Education Reform Program

Another avenue as regards reform (as well as education) is FLP’s plan to partner with the Legal Education Board in developing a program to reform the legal education in the Philippines.

 

FLP Museum

Apart from the Centers for Liberty and Prosperity, the Foundation is looking at establishing an FLP Museum where various memorabilia and important items will be kept and made available for viewing of the public. This will be through a possible purchase of the entire floor of a building in FEU Makati at cost which the Chairman has proposed to the Chairman of FEU to be put up in the land purchased by FEU where the old 6-story Zuellig building is located at the corner of Ayala and Buendia Avenues. The Chairman of FEU said that she will bring this proposal to the Board of FEU and that she agrees in principle to sell one floor to the Foundation.

 

V.  Assets and Financial Position 

            As reported by then FLP President Maria Elena P. Yaptangco in her First Annual Report (2012), the Foundation was incorporated with a total of two million pesos (P2,000,000) as initial funds, contributed by retired Chief Justice Artemio V. Panganiban. Presently, based on the 2015 Audited Financial Report presented before and approved by the Board of Trustees, the Foundation’s total assets reached a sum of Sixty Million Nine Hundred Eighty-Seven Thousand Three Hundred Ninety-Two Pesos (P60,987,392).

FLP’s depository bank is Bank of the Philippine Islands (BPI). The funds may be withdrawn only by signature of two of its four authorized signatories, preferably, the President and/or the Treasurer.

Apart from its cash assets, the Foundation is the recipient of copyrights over the “Ageless Passion” musical compositions of Mr. Ryan Cayabyab and lyrics thereto by Mr. Kristian Jeff C. Agustin. Mr. Cayabyab’s professional fees amounting to four hundred thousand pesos (P400,000) were paid for directly by several friends of our Chairman, led by businessman Eduardo Yap. Atty. Joel Emerson J. Gregorio, FLP Corporate Secretary, obtained copyrights of these works from the government.

To date, the Foundation has not incurred any salaries and personnel expenses. The Executive Director and Chief Operating Officer, Atty. Martin Angelo L. Esguerra, is being given an allowance by The Baron Travel Corporation until the FLP Secretariat can be fully established through the purchase and subsequent leasing out of the PCCI property which shall cover, among others, the salary of the ED and other personnel to be hired. In addition, the Board of Trustees is meeting quarterly pro bono. Regular meetings, including meals and snacks, are generously hosted by Chief Justice & Mrs. Artemio V. Panganiban at 1203 Acacia, Dasmariñas Village, Makati.


[1] Namely: Mr. Ramon Ang, Manila Electric Company, Philippine Long Distance Telephone Company, Metro Pacific Investment Corporation, Lopez Holdings Corporation, Inc. and First Philippine Holdings.

 

Global Forum on Liberty and Prosperity

Liberty and Prosperity: Balancing Critique and Utopianism

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)

Kristian Jeff Cortez Agustin

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.

ASEAN: Unleashing Entrepreneurial Ingenuity

Address delivered by retired Chief Justice ARTEMIO V. PANGANIBAN during the Opening Luncheon on February 26, 2015 of the 12th General Assembly of the ASEAN Law Association (ALA) held at the Makati Shangri-la Hotel, Makati City, Philippines. The three-day ALA General Assembly was held on February 26-28, 2015, and followed by the Summit of ASEAN Chief Justices on March 1-3, 2015 in Boracay Island, Philippines.

I thank Attorney Avelino V. Cruz, incoming President of the ASEAN Law Association or ALA, for inviting me to speak during this Opening Luncheon of the 12th ALA General Assembly. Ave and I go a long way as friends and members of ALA; we participated in many activities of our organization since its founding in 1979. He asked me to talk on our General Assembly’s theme of “Sharing Prosperity at the Crossroads of ASEAN Integration – the Legal Challenges.” I think that the theme presupposes, and I agree, that before it can be shared, prosperity must first be created.

 

Limitless truths

Let me begin with a famous quotation of Dr. Martin Luther King Jr., “If a man does not have a job or an income, he has neither life nor liberty nor the possibility for the pursuit of happiness.” Let me repeat that, “If a man does not have a job or an income, he has neither life nor liberty nor the possibility for the pursuit of happiness.”

It may seem ironic that in beginning my speech before the judicial and legal greats of our ASEAN region, I should be citing an American civil rights icon, a foreigner in our 10 member countries. But I quoted him not because of his nationality, color, gender or religion. I quoted him because of the truth he said so simply but so profoundly.

I cited him because precisely of my belief that truth is eternal and limitless; that truth is not bound by sovereignty, or territory, or ideology, or legality; that what is true in America is also true in the Philippines, in the ASEAN and in the world. And that truth is this: humans need both justice and jobs; freedom and food; ethics and economics; peace and development; liberty and prosperity; these twin beacons must always go together; one is useless without the other.

My friends, many of you are aware that I have always espoused “Liberty and Prosperity” as the twin anchors of my being as a lawyer and as a jurist. Many of you attended my valedictory activity as chief justice of my country when on October 18-20, 2006, I convened a “Global Forum on Liberty and Prosperity” here in this very venue of our General Assembly, the Makati Shangri-la Hotel. Thank you, indeed, for honoring me with your attendance in that global meeting of 300 jurists, legal professionals and academics.

Now, even in retirement, I still continue my advocacy for these twin beacons of liberty and prosperity. Thus in 2011, five years after my retirement from the judiciary, when I celebrated my 75th birthday, I organized the Foundation for Liberty and Prosperity, which is now honored to co-sponsor this General Assembly, together with the Philippine Supreme Court and the Philippine ALA Chapter.

To repeat, there are certain truths that transcend sovereignties, territories, ideologies and legalities. And one of those truths is this: The best way to conquer poverty, to create wealth and to share prosperity is to unleash the entrepreneurial genius of people by granting them the freedom and the tools to help themselves and society.

 

Saving the fisherman

Let me prove my thesis by quoting a popular adage from Confucius, “Give a man a fish and you feed him for a day. Teach him to fish and you feed him for a lifetime.” Indeed, to save a fisherman from destitution, we must help him learn how to fish more effectively. We must educate him in the skills needed to catch fish more efficiently, assist him in acquiring a boat, allow him the freedom to sail the vast oceans, and teach him the techniques to market the fish he catches.

Sometimes, some of us fear that the fisherman may get lost and die in the storms that batter the seas; or that he may become selfish and would want to own the entire ocean and its vast resources; or that he may become too rich and powerful and metamorphose into a rival, an enemy, or worse, a master. Such fears of possible misjudgements may indeed happen some of the time. Human arrogance, greed and avarice lurk in all undertakings. But they are the exceptions rather than the rule. We must never stop dreaming for fear that reality may shatter our dreams. That is part of the interesting reality of being human.

On the other hand, I respectfully believe that the goal of governance and of law is to provide guarantees and incentives to help the fisherman prosper, to create the institutions to support him, and to promulgate minimal regulations to prevent him from appropriating all the fishing grounds, from keeping all the earnings to himself and from forgetting his obligation to pay reasonable taxes to the government. Indeed, government must inspire him to share his consequential wealth with the rest of society.

 

Validating the truth

Let me take you briefly around the world to validate this simple truth. The United States, the most powerful country in the world and the great promoter of liberal democracy, attained affluence because of the pioneers who defied monarchical tyrannies and started a new nation that unleashed the inventive, innovative and entrepreneurial spirit of people like Thomas Edison, Nikola Tesla, Cornelius Vanderbilt, John Rockefeller, Andrew Carnegie, Henry Ford and J.P. Morgan, and of great government leaders like Franklin Delano Roosevelt and Dwight Eisenhower who provided them with the encouragement to attain their dreams and the good governance to contain their greed and share their wealth.

Then, let us go to China, the second most powerful economy in the world and the prime promoter of the communist system. True, Mao Zedong led the masses in a revolt that dislodged the corrupt and inefficient government born of an outdated monarchy. But it was Deng Xiaoping who led this nation to unparalleled economic prosperity by unleashing the entrepreneurial ingenuity of the Chinese under his “One-Country-Two-Systems” philosophy.

Finally, let me bring you to Korea. As a result of World War II, this country was divided into North and South, which unfortunately could not accept their division and engaged in a terrible war that ruined their economies and impoverished their people. Rising from the ruins, South Korea relied on the entrepreneurial spirit of the Korean people and built on their private initiative as well as on the notion that innovation, creativity, freedom and hard work would enable them to conquer their poverty, provide for their family’s well-being and attain affluence.

In contrast, North Korea – despite its technological and military bravado – wallow in abject poverty as a result of its tight grip on creativity and inordinate fear of the entrepreneurship, education, freedom and prosperity of its people.
ASEANflags2015
Entrepreneurship in ASEAN

Let us now examine ASEAN. Our region as a whole is the focus – yes, the darling – of the world. Some of its members, like Singapore, have attained first world status. Malaysia and Thailand are exemplars on how to propel economies. And during the past few years, the VIPs of the world – Vietnam, Indonesia and Philippines – have exhibited enviable records of GDP growths.

Why? Because our peoples’ entrepreneurial spirit had been unleashed even if inadequately in some places; because our permanent institutions are being strengthened and relied upon, instead of upon the apron strings of our temporary leaders; because our educational standards have been uplifted and have released the spirit of the fisherman in us; because our governments are learning that the best way of governing is to govern the least and to allow people to freely use their innovation and initiative, interfering only to check avarice and to level the playing field. Indeed, the primary role of government is to create just societies; to focus on improving access to the basic necessities of food, clean water, education, infrastructures (roads, bridges, airports, etc.), health care, decent incomes and jobs, to honor commitments made in good faith, and to protect property rights.

The peoples of the world and of ASEAN have different histories, traditions, cultures, ideologies and mindsets. But I dare say, all of them need liberty and prosperity. Some countries, taking into account their unique backgrounds, start with improving their people’s economic lives first and restrict temporarily in measured stages their political liberty. Some others begin with political liberty thinking that their economy would flourish as a necessary consequence. Still some others rise with a combination of both liberty and prosperity at the very beginning. I think that such differing starts and focus are necessary in the growth of nations. But, I also firmly believe that eventually and inevitably, all the peoples of the world need and deserve liberty and prosperity in equal measure.

 

Conquering poverty

In his speech before a convocation at Howard University in Washington, D.C., World Bank President Jim Yong Kim, an American of Korean descent whom I met during a reception hosted by our President Benigno Aquino III, grimly said that “the world/s richest 85 people have as much combined wealth as the poorest 3.6 billion.”

The 2014 “Key Indicators” of the Asian Development Bank show that this glaring disparity in wealth distribution is not as grotesque in the ASEAN region. Indeed, ASEAN as a whole is fortunate to suffer less poverty and to enjoy more affluence than many parts of the world. Still I say that we cannot ignore the injustice of wealth inequality and the need to share prosperity.

Let me illustrate why. Let us say that our next door neighbor in our village contracts the deadly dengue disease. Would we not help him fumigate his house and drain the idle water in his yard because the culprit mosquito is capable of flying into our homes, without respecting our fence and our legal certificate of home ownership?

Of course, we will – out of self protection, if not out of love for him. In the same manner, if a bird flu epidemic breaks out in Cambodia, the neighboring countries, if not the entire ASEAN community, would surely come out and help eradicate the disease, remembering that the birds causing the disease will not respect or care about the sovereignty and territorial limits of states.

The above examples are simple. But from simplicity really comes the wisdom of sharing and caring for the less fortunate, for the poor, for the least, lost and last.

 

Eliminating impediments

Indeed, our General Assembly’s theme of “Sharing Prosperity” and specifically our desire to solve the legal challenges that impede our altruistic goal should be foremost in our minds when we tackle, in full session or in separate workshops, the various topics we have drawn to meet these challenges, namely, the “Legal Profession, Alternative Dispute Resolution, International Law, Trade and Investment, and Legal Education.”

Some legal impediments to the ASEAN integration of trade, investments, services and skilled labor may be formidable, like constitutional restrictions on ownership of land, media, public utilities, natural resources and the like. Consequently, they may take some time to resolve. But some are really simple, like facilitating the opening of new businesses.

Karl Kendrick Chua, Senior Country Economist of the World Bank, in a speech before the American Chamber of Commerce on January 29, 2015, said that “in the Philippines, it takes 34 days and 16 steps to start a business, and it costs 17 percent of per capita income, compared to 6 days, 3 steps, and 7 percent of per capita income in Malaysia.” Certainly, the lawyers of ASEAN can easily help solve this simple problem by tapping Malaysia as the model. Indeed, we can solve many legal impediments by simply sharing the solutions already formulated by our ASEAN brothers.

I am sure that this afternoon and during the next two days of our General Assembly, the simple problems can be resolved immediately while the formidable ones can be planned more intensely in future meetings.

Today, at the start of our General Assembly, I see happy and optimistic faces among you my dear colleagues. And on our last day, as reports of our workshops are read, discussed and approved during our closing session, I expect to see even happier faces for, by then, we would have accomplished our mission.

Thank you. Maraming salamat po.

 

First published via: Unleashing Entrepreneurial Ingenuity
(Official Website of Chief Justice Artemio V. Panganiban)

4th Annual Report

(January 1, 2014 to December 31, 2014)

            Formally organized and incorporated on October 27, 2011, the Foundation for Liberty and Prosperity will celebrate its third anniversary this year. Led by its Board of Trustees—namely Artemio V, Panganiban, Elenita C. Panganiban, Hilario G. Davide Jr., Washington Z. Sycip, Edilberto C. De Jesus, Jennifer J. Manalili, Maria Elena P. Yaptangco, Maria Theresa P. Manalac, and Joel Emerson J. Gregorio—the FLP has already gained the admiration of its stakeholders within such a short period of time.

 

New Batch of Officers

The FLP continues to serve its purpose with a new batch of officers, namely Artemio V. Panganiban (Chairman of the Board), Evelyn T. Dumdum (President), Rebecca G. Felix (Treasurer), and Joel Emerson J. Gregorio (Corporate Secretary). In addition, the chairs of the various standing committees remain—Artemio V. Panganiban (Executive Committee), Washington Z. Sycip (Finance Committee), Hilario G. Davide Jr. (Governance Committee), and Edilberto C. De Jesus (Education Committee).

The position of Executive Vice President, formerly held by Evelyn T. Dumdum, is now vacant. Two former members of the Executive Committee—Maria Elena P. Yaptangco and Elenita C. Panganiban—cordially left their posts during the Annual Membership and Organizational Meeting on July 15, 2013.

The first batch of officers were Artemio V. Panganiban, Chairman of the Board, Maria Elena P. Yaptangco, President; Evelyn T. Dumdum, Executive Vice President; Elenita C. Panganiban, Treasurer; and Joel Emerson J. Gregorio, Corporate Secretary. Elected chair of the various standing committees were Artemio V. Panganiban (Executive Committee), Washington Z. Sycip (Finance), Hilario G. Davide Jr. (Governance), and Edilberto C. De Jesus (Education).

 

Goals and Projects

The FLP was founded to perpetuate the core judicial philosophy of then Chief Justice Artemio V. Panganiban—that jurists and lawyers should not only safeguard the liberty of our people but must also nurture their prosperity under the rule of law. Thus, the first two years since its incorporation saw the FLP realizing its first projects and activities: (1) the “Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity”, (2) the official FLP Website (www.libpros.com), and (3) the “Liberty & Prosperity Journal”, hitherto an e-newsletter.

The Foundation has yet to realize its other proposed projects and activities, such as: (1) curricula on liberty and prosperity under the rule of law; (2) legal assistance, legal research and legal aid; (3) educational scholarships and fellowships; and (5) a Center for Liberty and Prosperity. The Board of Trustees and Officers are hopeful that the year 2014 is ripe for a Center for Liberty and Prosperity, which would enable the FLP secretariat to implement and accomplish more projects.

 

Professorial Chairs Project

The Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity is being implemented for two years now, following its launch on September 18, 2012 at the Metrobank Auditorium, Makati City. This flagship project started the implementation of the Foundation’s Program of Action. The Metrobank Foundation partnered with the FLP in this endeavor by donating one million pesos (P1,000,000.00) in co-sponsorship of the program.

Nine deans will be the initial holders of the professorial chairs. The holders will receive two hundred thousand pesos (P200,000.00) per year (one hundred thousand per semester) in recognition of their intellectual output which

advocates the promotion, appreciation, application and protection of liberty and prosperity. The output can be in the form of a traditional lecture, debate, case study or other modern and creative methods of communications, which is accessible to the public. The intellectual outputs from the chair holders will eventually be published in a book and/or in other modes of communications.

One professorial chair holder will come from the Philippine Judicial Academy, preferably its Chancellor. He/She will be expected to deliver a public lecture or other intellectual output during the pre-judicature seminars/courses of PHILJA for one year, as well as during the annual meetings of the various trial judges associations.

The FLP intended its first program, in the format of the professorial chair project, to be educational and implemented in an academic setting. The main objective is to get the academe to research and propagate the philosophy at the academe level (including training of students, professors, lawyers, and judges.) The FLP seeks to address the dearth of scholarly research on the philosophy of “Liberty and Prosperity Under the Rule of Law” by sparking discussions in law schools, and eventually influence their law curricula.

The first batch of recipients include the deans of top nine law schools in the Philippines, plus a tenth chair in the Philippine Judicial Academy. These were—surnames in alphabetical order—(1) Atty. Reynaldo U. Agranzamendez (Dean, University of the Cordilleras College of Law); (2) retired Supreme Court Justice Adolfo S. Azcuna (Chancellor, Philippine Judicial Academy); (3) Atty. Andres D. Bautista (Dean, Far Eastern University Institute of Law); (4) Atty. Sedfrey M. Candelaria (Dean, Ateneo de Manila School of Law); (5) Atty. Danilo L. Concepcion (Dean, University of the Philippines College of Law); (6) Atty. Jose Manuel I. Diokno (Dean, De La Salle University College of Law); (7) Atty. Nilo T. Divina (Dean, University of Santo Tomas Faculty of Civil Law); (8) Atty. Joan Sarausos-Largo (Dean, University of San Carlos School of Law and Governance); (9) retired Supreme Court Justice Eduardo B. Nachura (Chairman, Arellano University Law Foundation); and (10) Atty. Manuel Quibod (Ateneo de Davao University College of Law). Regrettably, the 10th appointee failed to respond to FLP’s cordial invitation and appointment letter, hence he was eventually and decidedly removed from the list of chair holders.

On its second term, a second batch of chair holders were appointed and/or renewed, namely (1) retired Supreme Court Justice Adolfo S. Azcuna (Chancellor, Philippine Judicial Academy); (2) Atty. Sedfrey M. Candelaria (Dean, Ateneo de Manila School of Law); (3) Atty. Joan Sarausos-Largo (Dean, University of San Carlos School of Law and Governance); and (4) Atty. Mikhail Lee L. Maxino (Silliman University College of Law).

Among the second batch of chair holders, Dean Sedfrey M. Candelaria delivered his commitment in full. The Ateneo Law School Dean delivered his second public lecture entitled “Comparative Analysis of the Memorandum of Agreement on Ancestral Domain and the Framework Agreement on the Bangsamoro” on November 29, 2013. Thereafter, he organized an international moot court competition at the Ateneo Justitia Hall from March 4 to 5, 2014.

To summarize, below is a table with the list of first term and second term appointees and their number of outputs already delivered. From ten chair holders on its first term, the professorial chairs program extended to another term (second) with only four chair holders renewed. We are still waiting for the first term appointees to cooperate and comply fully.

Marking the second anniversary of the Professorial Chairs on Liberty and Prosperity (September 18, 2014), Deans Joan Sarausos-Largo and Mikhail Lee L. Maxino are expected to hold a back-to-back public lecture on September 11 and 12, 2014, in Cebu City and Dumaguete City, respectively. The FLP awaits their formal topic proposals yet.

 

Other Projects

The Foundation published and distributed its e-newsletter “Liberty & Prosperity Journal” by the second quarter of 2013. These were received in PDF format by FLP’s network of VIPs, stakeholders, and academics via email. The 10 professorial chair holders likewise received copies of the e-newsletter and promised to disseminate them to their respective law schools for the benefit of students and faculty alike.

Apart from the information dissemination efforts of the Foundation by means of e-newsletters and its official website, more projects are underway in the coming months. A World Bank sponsorship of the FLP’s ICT (Information and Communication Technology) and IEC (Information, Education, and Communication) projects will formally be sought by the end of 2014, a co-hosting of the ASEAN Law Association Conference with the Supreme Court of the Philippines is anticipated by February 2015, and a reconvening of the Global Forum on Liberty and Prosperity on October 2016, marking the 10th year of the first one in 2006. These high-profile projects are lined up with the aim of elevating our judicial philosophy to the international arena—to gain traction and support outside Philippines jurisprudence.

  

Strategic Planning Workshop

On May 6, 2014, the FLP held a Strategic Planning Workshop together with the Far Eastern University (FEU) Institute of Law, in its new building in Ayala, Makati (FEU Makati). The workshop primarily aimed to discuss the transfer of the FLP’s headquarters and secretariat to FEU Makati. Joining in the discussions are Atty. Melencio Sta. Maria (new FEU Law dean) and Atty. Sedfrey M. Candelaria (Ateneo Law dean), who both pledged their support.

To facilitate the transfer, FEU Makati will provide a room, furnished with basic office equipment, in its Makati building to serve as the main office of the FLP’s secretariat and admin. The Executive Secretary and/or Executive Director will also come from the FEU Faculty.

The Ateneo Law School reiterated their cooperation and expressed that they can provide assistance in establishing the FLP head office and, soon perhaps, a Center for Liberty and Prosperity.

One of the main points covered during the planning workshop was the FLP’s application to seek tax exemption. The Foundation is making preparations to seek accreditation from the Philippine Council for NGO Certification (PCNC), which would eventually allow the FLP to raise more funds, tax free for donors and donee.

New projects were likewise discussed during the workshop, including the publication of books that will serve as a published compilation of the various lectures delivered for the Professorial Chairs Program, as well as manuals (in book form) for the Global Forum on Liberty & Prosperity held on October 18-20, 2006). In addition, the funding proposal to the World Bank, to sponsor the expansion of the FLP’s information dissemination projects, was also discussed.

The proposal of creating an independent think tank was also revisited during the planning session. This will entail convening experts in law, policy, and business to perpetuate the aims of the Foundation.

Finally, a creation of a Research Team was also proposed and discussed during the session. This group of professionals and academics—from different sectors of society including law, business and education among others—will generate research outputs and provide inputs regarding the philosophy of “Liberty and Prosperity Under the Rule of Law”.

 

Recent Developments

FLP Chairman, Chief Justice Artemio V. Panganiban, and President, Mrs. Evelyn Toledo-Dumdum, are currently cooperating with the Supreme Court in crafting a new reform program patterned after the Action Program for Judicial Reform (APJR). This endeavor would allow the FLP to closely cooperate with the high court in building its new reform program under the leadership of incumbent Chief Justice Maria Lourdes P.A. Sereno, who regard the FLP very highly.

Moreover, Chief Justice Panganiban appeared in several speeches within the past year, generating more attention towards the FLP. Noteworthy are two particular speaking engagements—first at the Grand Alumni Homecoming of the Mapa High School held on February 23, 2014 and, second, at the Luncheon Fellowship of the Philippine Bar Association on March 25, 2014—where Chief Justice Panganiban delivered the first and second parts of his lengthy speech entitled “Safeguard Liberty, Conquer Poverty, Share Prosperity”. These major speeches sought to address and inform the general public as well as the upper echelon of law practitioners, respectively, regarding the retired chief justice’s judicial philosophy.

Coming up is another important speaking engagement by the FLP Chair before the Integrity Summit organized by the business community and led by the Makati Business Club and the European Chamber of Commerce for the business community, which is to be held on September 19, 2014.

 

Assets and Financial Position 

As reported by then FLP President Maria Elena P. Yaptangco in her First Annual Report (2012), the Foundation was incorporated with a total of two million pesos (P2,000,000.00) as initial funds, a contribution by retired Chief Justice Artemio V. Panganiban. The financial position reached a sum of seven million, six hundred and seventy-five thousand, twenty-one pesos and seventy-eight cents (P7,675,021.78), combining cash on hand and in bank in 2012 after several members’ and friends’ unsolicited contributions. The biggest contribution of five million pesos (P5,000,000.00) was given by Metro Pacific Investments Corporation. In addition, our Chairman was able to secure a commitment of one million pesos (P1,000.000.00) from the Metrobank Foundation, by way of co-funding the Chief Justice Panganiban Professorial Chairs Program.

FLP’s depository bank is Bank of the Philippine Islands (BPI). The funds may be withdrawn only by signature of two of its five officers, the Chairman, President, Executive Vice President, Treasurer and Corporate Secretary.

Apart from its cash assets, the Foundation is the recipient of copyrights over the “Ageless Passion” musical compositions of Mr. Ryan Cayabyab and lyrics thereto by Mr. Kristian Jeff C. Agustin. Mr. Cayabyab’s professional fees amounting to four hundred thousand pesos (P400,000.00) were paid for directly by several friends of our Chairman, led by businessman Eduardo Yap. Copyrights of these works were obtained from the government by Atty. Joel Emerson J. Gregorio, FLP Corporate Secretary.

To date, the Foundation has not incurred any salaries and personnel expenses. To help the FLP organize its secretariat, the salary of its former Executive Secretary, Kristian Jeff C. Agustin, was paid by The Baron Travel Corporation. In addition, the Board of Trustees are meeting quarterly pro bono. Regular meetings, including meals and snacks, are hosted by Chief Justice & Mrs. Artemio V. Panganiban at 1203 Acacia, Dasmarinas Village, Makati.

Dean Mikhail Maxino

No Right is inherently superior to another Right

Silliman University College of Law Dean Mikhail Lee L. Maxino’s “Right to Life, Liberty, Property: A Seamless Trilogy to Prosperity” public lecture was the first FLP-sponsored event held in Mindanao. A Master of Laws in Environmental Law (Dalhousie University, Canada) graduate and environmental law expert, Dean Maxino organized his lecture on November 26, 2014—a year after the super typhoon Haiyan/Yolanda devastated the south of the Philippines.

Dean Maxino’s lecture threshed out the principle of indivisibility of human rights, and put forward the main argument that “no right is inherently superior to another; they are all of equal importance.” In other words, a hierarchy of rights would only lead to “prioritized protections”. Thus, the Silliman Dean offered guiding principles: (1) one must respect the importance of rights involved; (2) one must acknowledge the limitation of rights; (3) one must look at the factor that limits a right (only actual burdens on rights trigger conflict); (4) one must understand that the core of a right is more protected than its periphery; and (5) one must consider rights within the the framework of other principles, such as social justice.

Ultimately, the goal is to curb the risk of enabling a select few— the rich, the powerful, or the privileged—to forcefully invoke their liberty and fundamental rights to legitimize their actions that marginalize the less privileged, especially in terms of socio-economic rights.

Quoting Frederick Bastiat, Dean Maxino pointed out that: “Life, liberty and property do not exist because men have made laws. On the contrary, it was that life, liberty and property that existed beforehand that caused men to make laws in the first place.”

He capped his lecture with a statement in reference to the book of Genesis: “In the beginning, God created property, then humans, then bestowed upon them the freedom to use and dominate property, then He exhorted them to multiply, be fruitful, be prosperous. Property, Life, Liberty – one seamless Right on the road to Prosperity.”

“It is curious that God created property first before humans” he added, “He designed property to be humanity’s source of food, even source of life. It is also curious to note that of the values that both the constitutions of the United States and the Philippines so sacredly protect, it is only property–the two being life and liberty– that people cannot be deprived of without due process of law and just compensation.”

Among the dignitaries present were Retired Chief Justice Artemio V. Panganiban and Mr. Nicanor L. Torres, Jr., Executive Director of the Metrobank Foundation.

Dean Maxino was instrumental in the establishment of the Dr. Jovito Salonga Center for Law and Development, an active social-advocacy arm, of the Silliman University College of Law. He has also been extensively involved in critical development projects in the areas of marine and costal resources and protected areas management, funded by international organizations, such as the Asian Development Bank (ADB) and the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ).


26 November 2014
Dean Mikhail Lee L. Maxino
Silliman University College of Law (Dumaguete City)

“Right to Life, Liberty, Property: A Seamless Trilogy to Prosperity” (download PDF)

Dean Mikhail Maxino

Dean Mikhail Lee L. Maxino responds to questions from the audience

Will the ASEAN integration help revitalize our legal system?

Dean Joan Sarausos-Largo weighed into current discussions regarding the ASEAN Integration 2015, and expounded on how this regionalization and collective identity building process can ideally foster liberty and prosperity under the rule of law. Delivering a speech in Cebu City on September 11, 2014 , the University of San Carlos (USC) School of Law and Governance Dean captivated an audience comprised of USC law students and faculty, as well as esteemed guests including FLP Chairman and retired Chief Justice Artemio V. Panganiban, retired Chief Justice Hilario G. Davide Jr., President Aniceto M. Sobrepeña of the Metrobank Foundation, FLP President Evelyn T. Dumdum, Department of Trade and Industry (DTI) Representative Glenda Reyes, USC President Fr. Dionisio M. Miranda, SVD, Court of Appeals Cebu Station Executive Justice Gabriel T. Ingles, Mme. Justice Portia Alino- Hormachuelos (newly-elected University of the Visayas Gullas Law School Dean), members of the first and second level courts, officers of the Integrated Bar of the Philippines (IBP), and deans of various law colleges and universities in the Visayas region.

Her lecture entitled “A Glass Half Full: ASEAN Integration 2015 and the Imperative for Reforms in the Legal Profession and the Legal Education in the Philippines” served as a timely reminder that the legal and judicial system must take the opportunities the ASEAN Economic Community will open when its ten member states open their gates in the next 5 years.

Dean Largo highlighted the importance of initiating a national conversation regarding the competencies of the Filipino lawyer, not only in the light of the ASEAN integration but also in keeping up with the global trends of the 21st century. While the changing currents may bring forth new perspectives as well as cross-cultural transformations, Dean Largo strongly emphasized that all the more new policies must remain evidence-based and constantly informed by empirical data and critical thought.

Equally important is the revitalization of the legal education. Her lecture also gave sound insights on how to nurture new lawyers who will ensure that the Filipino nation alongside other Southeast Asian nations will mutually benefit from the ASEAN’s economic and cultural growth.

Named as an Outstanding Graduate of the 500-year old University of San Carlos, Cebu, Dean Largo graduated Class Valedictorian and Magna Cum Laude in Political Science, and Cum Laude in Law, on top of being the Valedictorian of her Law Class. In 2000, she passed the Bar Examinations and was at the top 20 of successful examinees where only sixteen (16%) percent of all candidates passed. At age 28, she was appointed Assistant Law Dean of her Alma Mater’s College of Law. She is the youngest professor in the College to have occupied the administrative post.

Engaged in trial and appellate practice, Dean Largo is a partner at the Florido Largo & Acuña Law Offices.

 


 

11 September 2014
Dean Joan Sarausos-Largo
University of San Carlos School of Law and Governance (Cebu)

“ASEAN Integration 2015 and the Imperative for Reforms
in the Legal Profession and the Legal Education in the Philippines”  (download PDF)

FLP President Evelyn Toledo-Dumdum and USC Dean Joan LargoFLP President Ms. Evelyn Toledo-Dumdum and USC Dean Joan Sarausos-Largo

FLP President Evelyn Toledo-Dumdum
FLP President Ms. Evelyn Toledo-Dumdum delivering her remarks on behalf of the foundation 

DSC_4584
Ms. Glenda Reyes of the Department of Trade and Industry (DTI) and
USAID Trade-Related Assistance for Development (TRADE) Project

DSC_4596
Introducing the Professorial Lecturer

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Response from guests

Related article:
Unleashing Entrepreneurial Ingenuity
by Chief Justice Artemio V. Panganiban (Ret.)

Ateneo School of Law Holds Second Moot Court Competition

To cap his second term as Professorial Chair Holder, Dean Sedfrey M. Candelaria organized “The 2014 Chief Justice Artemio V. Paganiban – Liberty & Prosperity Public International Law Moot Court Competition” from March 4 to 5, 2014 at the Justitia Hall of the Ateneo Law School, Rockwell Center. The debate, which centered on “The State of Asioya v. The Kingdom of Raepinosa: Concerning the Events Related to Dereez and Lexseia” as main topic, was conducted in lieu of a public lecture by the esteemed Dean with the active participation of the St. Thomas More: Society of Advocates.

The championship round (March 5, 2014) was judged by a panelist, with Ambassador Manuel A. J. Teehankee as panel chair, and Ateneo Society of International Law (ASIL) alumni Atty. Jose Lorenzo as well as former ASIL presidents Atty. Pia Alvendia and Philip Dabao as panel members.

Lester Flores and Sang Mee Lee, both from 2B, represented Applicant, the State of Asioya, while Abby Castelo and Paolo Gonzales of 2A represented Respondent, the Kingdom of Raepinosa. The competition ended with 2A bagging Best Memorial and Overall Winner. Paolo Gonzales won Best Speaker for the final round and Alyssa Tan, also from 2A, was awarded Best Speaker for the eliminations. Chief Justice Artemio V. Panganiban and wife Elenita handed the plaques and certificates.

The competition formally closed with Chief Justice Panganiban, FLP Chairman, expressing both his delight over the second round of debates and his hope that more Atenean lawyers will be active in the international law sphere.

Apart from the Foundation for Liberty and Prosperity and Metrobank Foundation cohort, the event welcomed various members of the Ateneo Professional Schools Faculty.

Following the event was a symposium on corruption, which concluded the International Law Week.

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Public International Law Moot Court Competition at the Ateneo Law School’s Justitia Hall

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Mrs. Elenita Panganiban flanked by Chief Justice Panganiban and Dean Candelaria

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The panel of judges led by Ambassador Manuel A.J. Teehanke 

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Awarding ceremonies

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Awarding ceremonies

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Awarding ceremonies

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Dean Candelaria receiving the FLP honorarium from Chief Justice Panganiban


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Chief Justice Panganiban delivering his closing remarks.

   

 

The Unpaid Creditor vs The Distressed Debtor

Chair holder Atty. Nilo T. Divina, youngest Dean of the University of Santo Tomas Faculty of Civil Law and Founder of DivinaLaw, delivered his first lecture on 21 February 2014 at the UST Bar Lecture Room. It was witnessed by retired and incumbent justices and judges, prominent lawyers, bankers and students alike. The event was co-organised by the Philippine Association of Law Schools.

Aptly titled “The Unpaid Creditor vs The Distressed Debtor: Proposals to Balance their Competing Interests”, Dean Divina’s discussion provided the public with insights on banking, lending, and their judicial relevance. His lecture was met with accolades from important guests namely Rev. Fr. Isidro C. Abaño, O.P. (Regent, UST Faculty of Civil Law), Rev. Fr. Richard G. Ang, O.P. (UST Vice-Rector), former UST Faculty of Civil Law Dean Amado L. Dimayuga (now Dean Emeritus),  Mr. Benjamin C. Sevilla (President, Philippine Asset Growth One), Atty. Jose A. Barcelon (Senior Vice President and Head of Legal Services Group, United Coconut Planters Bank), Hon. Ramon Paul L. Hernando (Justice, Court of Appeals), and Mr. Nicanor Torres (Executive Director, Metrobank Foundation). Dean Divina’s lecture was also commended by retired Chief Justice Artemio V. Panganiban (FLP Chairman of the Board).

Dean Divina obtained his Bachelor of Arts in Behavioral Science (Cum Laude) in 1985 and his Bachelor of Laws (Magna Cum Laude, Valedictorian, Rector’s Awardee for Academic Excellence) in 1989, both from the University of Santo Tomas. He started his career in law as the clerk of court of the Regional Trial Court of Pasig City. In 1992, he moved on to become an associate attorney at the Misa Castro & Associates Law Offices. From there, he was appointed as Corporate Secretary of the Philippine Charity Sweepstakes Office (PCSO) where he eventually became its youngest General Manager and Chief Legal Adviser. In 1993, he joined Equitable Bank where he was initially hired as consultant and eventually became Equitable Bank’s youngest Vice President. Upon the merger of Equitable Bank with the Philippine Commercial International Bank (PCIB), the Bank promoted him as its youngest Executive Vice President/Corporate Secretary and General Counsel. Equitable PCI Bank (now Banco De Oro) is the country’s largest bank. In 2006, Dean Divina founded the Divina and Uy Law Offices which is currently the biggest Thomasian law firm in the country with 25 lawyers. Its clientele includes banks, financial institutions, top corporations, various publicly and privately-owned entities, as well as individuals with varied interests.

Dean Divina is the Author of the “Handbook on Commercial Law”.
     
     


       
     
21 February 2014
Dean Nilo T. Divina
University of Santo Tomas Faculty of Civil Law
“The Unpaid Creditor vs The Distressed Debtor:
Proposals to Balance their Competing Interests”  (download PDF)

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Singing of the Philippine National Anthem

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Mr. Nicanor Torres, Executive Director of the Metrobank Foundation delivering the Welcoming Remarks on behalf of Metrobank Foundation President Mr. Aniceto Sobrepeña

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UST Faculty of Civil Law Dean Emeritus Amado L. Dimayuga introducing the lecturer

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Dean Divina delivering his lecture

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Retired Chief Justice Panganiban delivering the Closing Remarks

Foundation for Liberty and Prosperity

Regulating the Practice of Professions by Foreigners

On 7 February 2014, chair holder Atty. Andres D. Bautista, former Dean of the Far Eastern University Institute of Law and Chairman of the Presidential Commission on Good Government, delivered his first lecture at FEU Makati. His topic entitled “Regulating the Practice of Professions by Foreigners” lengthily weighed the complementary principles of Liberty and Prosperity. According to him, “the ability to practice one’s profession is not only a way to earn a living, it is also a means by which an individual may seek fulfillment, attain self-actualization, and contribute to society.” For foreigners in the country, while they are likewise protected by the country’s bill of rights, “there are certain privileges that can be withheld by the State provided that the exclusion of such privilege is neither unreasonable nor arbitrary”.

The lecture attracted law students from host FEU, as well as from the law schools of Ateneo de Manila University and De La Salle University. He co-founded the Master of Business Administration-Juris Doctor dual degree program of De La Salle Graduate School of Business and FEU. Bautista earned a Bachelor of Science in Legal management degree from Ateneo de Manila University in 1986, a Bachelor of Laws, (Class Valedictorian) from Ateneo Law School in 1990, and a Master of Laws from Harvard Law School in 1993.

Before his appointment to PCGG, Chairman Andy was the Chief Executive Officer of Kuok Group Philippines. He also previously served as a Chairman and President of the Philippine Association of Law Schools, and a partner in an international law firm. He was also a member of Constitutional Reform Commissions under previous administrations.

    
     


    
     
7 February 2014
Dean Andres D. Bautista
Far Eastern University Institute of Law
“Regulating the Practice of Professions by Foreigners”  (download PDF)

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FLP Education Committee Chair and Former Education Secretary
Dr. Edilberto de Jesus delivering a welcoming message

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Dean Andres Bautista delivering his lecture aided by a detailed powerpoint presentation

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Mr. Aniceto M. Sobrepeña (Metrobank Foundation President) conversing with
Retired Chief Justice Artemio V. Panganiban (FLP Chairman of the Board)

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A student posing questions during the open forum

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Awarding of honorarium

3rd Annual Report

(January 1, 2013 to December 31, 2013)

The “Liberty & Prosperity Journal” came out with its maiden issue (September to December 2012), together with two succeeding issues (January to March 2013 and April to June 2013) by the second quarter of 2013. These were distributed as e-copies (in PDF format) to guests who were invited to the musicale “Ageless Passion” (December 20, 2012). Apart from the VIPs who received copies of the e-newsletter via e-mail, all FLP professorial chair holders (law school deans) also received the same and were asked to disseminate it to their respective law schools for the information and benefit of students and faculty alike.
Continue reading

Comparative Analysis of the MOA on Ancestral Domain and the Framework Agreement on the Bangsamoro

On his new term as FLP professorial chair holder, Dean Sedfrey M. Candelaria of the Ateneo Law School delivered his second public lecture on November 29, 2013. Presenting a “Comparative Analysis of the Memorandum of Agreement on Ancestral Domain and the Framework Agreement on the Bangsamoro” (view PDF file), Dean Candelaria followed-through the earlier public lecture delivered by Dean Reynaldo U. Agranzamendez (University of the Cordilleras), who focused on indigenous peoples’ rights, ancestral domain claims, and their economic implications.

His lecture attracted a large group of Public International Law students, among others. Demonstrating how his chosen topic is relevant to International law, Dean Candelaria opined that the implications of the two agreements engender not only political repercussions, but economic interests as well. He concluded noting how principles of liberty and prosperity are fundamental in the drafting of the said proposals, affecting not only select communities but the nation as a whole.

The open forum welcomed insightful comments and additional discussions from FLP Education Committee Chair Dr. Edilberto C. de Jesus (also former Philippine Department of Education Secretary and Deputy Commissioner of the Presidential Office of the Peace Commission) and Ateneo Law Professor Atty. Camilo Miguel M. Montesa (also former head of the Peacemaking and Peacekeeping Group in the Office of the Presidential Adviser on the Peace Process or OPAPP).

Apart from Ateneo Law faculty and students, the event was also attended by guests from Metrobank Foundation and the Armed Forces of the Philippines.

Dean Candelaria delivered his first lecture entitled “Finance & Law: Understanding the Institutional and Functional Role of the International Monetary Fund During Sovereign Debt Crisis Situations”  on September 21, 2012. This was commended by the FLP for “setting a high standard” in the FLP professorial lecture series.

Dean Candelaria has an undergraduate degree in Political Science at the Ateneo de Manila University in 1980. In 1984, he graduated from the Ateneo de Manila University School of Law and ranked among the top 20% of the law school graduating batch and received a grade of 83.2% in the 1984 Bar Examinations. In 1986, he left for graduate studies in law at the University of British Columbia (Vancouver, Canada) as a Rotary Foundation Ambassadorial Scholar and was conferred the degree of Master of Laws in the field of Public International Law.

In 2004, Dean Candelaria was appointed by the President of the Republic of the Philippines as a Member of the Negotiating Panel for the Peace Talks with the Communist Party of the Philippines, the New Peoples’ Army and the National Democratic Front of the Philippines (CPP/NPA/NDF). He also chairs the Government of the Republic of the Philippines Monitoring Committee on the Comprehensive Agreement in Respect of Human Rights and International Humanitarian Law.

Dean Candelaria was recently invited to teach at the Master of Laws Program jointly administered by the Supreme Court Philippine Judicial Academy (PHILJA) and the San Beda College Graduate Program in Law.
     
     


       
      
29 November 2013
Dean Sedfrey M. Candelaria
Ateneo de Manila University School of Law
Comparative Analysis of the Memorandum of Agreement on Ancestral Domain
and the Framework Agreement on the Bangsamoro” (download PDF)

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FLP Education Committee Chair and Former Education Secretary
Dr. Edilberto de Jesus delivering a welcoming message.

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Dean Sedfrey Candelaria introducing his second public lecture

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A slide presentation on the areas in Mindanao covered by the topic

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Ateneo Law students and Dean Sedfrey Candelaria

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A law student asking further questions during the open forum

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Dean Sedfrey Candelaria awarded by Chief Justice Artemio V. Panganiban and
wife Elenita C. Panganiban, together with Dr. Edilberto de Jesus
and Mr. Nicanor Torres (Executive Director, Metrobank Foundation)

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Retired Chief Justice Artemio V. Panganiban
closing the program with a lighthearted message

– –

29 November 2013
Dean Sedfrey M. Candelaria
Ateneo de Manila University School of Law
Comparative Analysis of the Memorandum of Agreement on Ancestral Domain
and the Framework Agreement on the Bangsamoro” (PDF)

Recasting Liberty and Prosperity in Philippine Lifelong Learning

by PATRICK ALCANTARA

   
   
            Understanding liberty and prosperity in a judicial sense involves appreciating the goals of upholding democracy and development in a modern society. These goals are more pronounced in emerging economies such as the Philippines, where an acute need for deepening democratic participation and fostering economic growth exists. Lifelong learning shares these goals by expressing these in terms of citizenship education and skills provision. While policy-makers and educators have routinely focused on basic education as the locus of such an enterprise, it is necessary to explicitly frame citizenship education and skills provision in higher education and lifelong learning. The author explores this argument by giving service learning in higher education as an example where liberty and prosperity can be explicitly framed as learning for citizenship and work competencies.
   
ABOUT THE AUTHOR
   
patrickalcantara_photo
   

Patrick Alcantara
recently finished his Masters in Lifelong Learning: Policy and Management degree (with distinction) from the Institute of Education, University of London and the Universidad de Deusto, Spain. He completed his Masters under a scholarship granted by both universities, with a dissertation diagnosing and improving workplace learning provision in the Philippine tourism industry. He finished his Bachelor’s degree in Psychology in 2006 from the University of Philippines, Diliman. Originally a language teacher by profession, Patrick now specializes in professional, vocational and workplace learning (PVWL) research.
   
   


   
   
INTRODUCTION
   
The main argument of this work builds upon the judicial philosophy of liberty and prosperity. With the law being referred to as an “external deposit of our moral life”[1], it expresses the values of our people. As such, a commitment to political liberty and economic prosperity implies deploying our collective values – the law – in safeguarding human rights as well as alleviating poverty[2]. This requires a stable, impartial judiciary that can enforce the rule of law, complemented by appropriate legislation and executive action[3].

Nonetheless, this work argues that judicial fiat, legislation nor executive action would be enough to uphold the ideals of liberty and prosperity. These ideals have to be enculturated in our people, and education is the means of socializing individuals into appreciating the value of liberty and prosperity in a modern society. While policy-makers and educators have routinely focused on basic education, the rise of the modern knowledge-based economy challenges us to reconsider a lifelong approach to learning. Hence, I will make the main argument recasting liberty and prosperity from a lifelong learning (LLL) perspective. This argument underpins an assumption that judicial reforms can thrive in an environment where the rule of law and economic development is assured through lifelong learning.

I will back up this argument in the following fashion. A short discussion elaborating on the ideals of liberty and prosperity, as well as LLL in the Philippine context, will be made in order to interrogate current literature and developments in the field. This will be linked to the argument reinterpreting liberty and prosperity as citizenship education and skills provision involving work-related competencies in the LLL setting. This argument will be explored further by elaborating on service learning, which is seen as a pedagogical tool that combines citizenship education and skills provision. Opportunities for adopting service learning (SL) in higher education and legal training conclude this work.

In the end, this work aims to accomplish the following goals: (1) advance the judicial philosophy of liberty and prosperity as a workable paradigm towards social justice and social progress; (2) propose the extension of LLL provision in ensuring social cohesion and economic competitiveness; (3) explore pedagogical tools that propagates values and competencies essential to work; and (4) contribute to the ongoing discourse on liberty and prosperity, and extend it beyond law and jurisprudence.
   
   
On liberty and prosperity as judicial ideals

Safeguarding personal and political liberties has been familiar territory for the courts. In times of overreach by governments, citizens have turned to courts in order to interpret laws and uphold freedoms. In the liberal democratic tradition, this has instituted freedoms such as the right to expression, a free press, universal suffrage, peaceful assemblies and worship[4]. In today’s context where religious fundamentalism and terrorism are perceived as threats to national and global security, freedoms are continuously calibrated by the courts. Current events such as the US government’s internet and phone surveillance program, as revealed by former national security contractor Edward Snowden[5], come into mind as courts grapple with balancing personal liberties with national security.

Ensuring economic prosperity is argued to be less perceived as a concern by courts[6]. However, it is also asserted that a mandate for such exists[7], given international accords that enshrine economic, cultural and social rights[8]. This is further strengthened in the Philippine context by a constitutional mandate to the State to “promote a just and dynamic social order that will ensure prosperity… and free the people from poverty.”[9] As such, this begs a responsibility for the courts to interpret laws within that given framework.

The duality of liberty and prosperity is underscored in the judicial philosophy advocated by former Chief Justice Artemio Panganiban, who argued for championing these values in decisions made by the courts. This philosophy is marked by an adherence to the rule of law, a basic deference to the prerogatives of other branches of government, and an appreciation of the relationship between regulation and entrepreneurship[10]. This translates to a pragmatic application of the law in order to foster a favorable economic climate while ensuring the protection of liberties and the provision of substantive justice. This represents a leap from traditional legal thinking, which often places the law on a pedestal and apparently separates it from a larger socio-economic context. Upholding liberty and prosperity then remedies that flaw, and can present interesting consequences on the application of the law.
   
   
Lifelong learning (LLL): General assumptions within a specific Philippine context

Lifelong learning (LLL) has been defined in terms of a shift away from organizing education in youth to including all stages of the lifespan[11]. This is seen as an important consequence to the rise of the knowledge economy, where innovation far outstrips formal education provision, and there exists a need to continuously learn and re-learn throughout life[12]. The presence of ageing societies in advanced industrial economies also provides an additional challenge to utilize all available human capital for productive activity. Lifelong learning, therefore, is a response to this context and focuses on developing post-compulsory education and training.

While LLL and its implementation remains a contested field owing to different international agendas[13], it is still an emerging discipline in the Philippines. There is a lack of common understanding and consciousness about LLL, and policy is usually the sum of separate programs such as technical-vocational education and training (TVET) provision by the Technical Education and Skills Development Authority (TESDA), distance learning by the Commission on Higher Education (CHED), and equivalency programs by the Department of Education (DepEd)[14]. As policy-makers focus their sights separately on education and training in its different loci – basic education, higher education and TVET – a lack of coherent strategy for LLL is noticeable. Considering regional developments that will test Philippine capacity for delivering LLL, such as the looming integration of Southeast Asian labor markets by 2015[15], the need to prepare for learning provision throughout life remains a formidable challenge to policy-makers.

Amidst these challenges, there is a growing recognition among policy-makers on the importance of skills provision especially in urban workplace and rural agricultural settings where productivity is declining[16]. This is important considering that it creates pressure to organize a LLL strategy that will provide skills to Filipino workers. Moreover, the mandate to extend basic education to 12 years with closer links to TVET in high school[17] also provides an encouraging direction to Philippine LLL.

It is important to note however, that LLL should not be limited to skills provision alone. Learning has to fulfill a greater societal agenda, which includes ensuring social mobility, equality of life chances, social cohesion and active citizenship[18]. It is in this context that skills provision must be appreciated, as it should lead to active citizens with a stake in public life. In the Philippines, while citizenship education is present in the basic level, as seen in civics-oriented subjects such as Makabayan and Araling Panlipunan[19], it is less noticeable in other facets of LLL provision. This also provides an additional challenge to policy-makers and other stakeholders to develop responsive programs that will promote citizenship education for social cohesion.
   
   
Liberty and prosperity as citizenship education and skills provision

It is important to revisit the main argument at this point. Judicial decisions, while essential to maintaining the rule of law as well as the pursuit of liberty and prosperity, are not enough. Liberty and prosperity require enculturation into the life and will of the people. In other words, these values need to be expressed in the daily tasks undertaken by individuals. This requires building an epistemic culture, one that develops practices enabling the use of existing knowledge and tools in order to create new forms of economic, political and social activity[20]. This is well within the domain of LLL which concerns itself with knowledge and skills provision beyond compulsory education.

In turn, a reinterpretation of liberty and prosperity from a LLL perspective must then occur in order to situate education and training as a locus for propagating these values. Upholding personal and political liberties can then be recast in the form of citizenship education, one that socializes individuals as to their rights and the remedies afforded by law in case of a breach. More importantly, LLL can be used as a means to advance citizenship outcomes, foster social cohesion and deepen democratic participation.

Meanwhile, nurturing prosperity can be reoriented towards skills provision, where citizens are given the necessary competencies essential for the workplace and in entrepreneurship. Governments and the private sector must create opportunities for people to develop their competencies throughout the life span. With people changing their career paths throughout life becoming more common, it becomes necessary to support and utilize this towards greater productivity.

Given this, LLL is challenged to propagate the ideals of liberty and prosperity through citizenship education and skills provision. As the Foundation’s exhortation goes – “justice and jobs, freedom and food, ethics and economics, democracy and development”[21] – LLL has to be explicitly reframed to achieve both goals of substantive freedom and economic well-being. This begs operationalization through learning programs in post-compulsory education (eg. professional, vocational and workplace learning [PVWL] and higher education) that includes elements of both values. Pedagogical tools that enable educators to make learners reflect on these values while acquiring competencies are essential in order to enculturate liberty and prosperity.
   
   
Service learning (SL) in advancing liberty and prosperity

The previous discussion raises the need to utilize pedagogical tools that can enculturate the values of liberty and prosperity. One such tool is service learning (SL). SL is defined by Puig as “a pedagogical methodology that brings together into one single process the learning of competencies and values with the undertaking of tasks that benefit the community.”[22] This is distinguished from other common practice-based activities in higher education such as volunteering, community service and internship through the interaction of its service and learning elements, as shown in the figure below[23]. Good examples include the Australian Goodna Service Integration Project[24], which launched efforts (among other SL initiatives) tackling domestic violence through a partnership between the University of Queensland, police force and local community.

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Figure 1. Service learning quadrant with examples of
common practice-based activities (Service Learning 2000, 1996)

            Service learning has been asserted as a way to develop a “connected view of learning”[25] and to transform “education as an act of social justice.”[26] It draws its strength from its method of developing skills and competencies in a values-rich environment, while at the same time introducing learners to a wider communities of practice[27] that host tools and practices which differentiate vocations and other forms of human enterprise[28]. In other words, utilizing SL can mediate theory and practice, as well as situate learning within the realm of values[29]. As such, citizenship education and skills provision can both be undertaken in SL programs.

In turn, this pedagogical tool becomes useful considering the goal of propagating liberty and prosperity through citizenship education and skills provision in LLL. As LLL concerns itself with post-compulsory education, SL programs that promote the values of liberty and prosperity can be undertaken in higher education and legal training. For one, the Civic Welfare Training Service (CWTS) at the university level, as well as legal clinic programs such as the Office of Legal Aid by the University of the Philippines College of Law[30], can be explicitly recontextualized with appropriate citizenship education and skills provision elements. Opportunities to reflect on these values and their relationship to one’s professional development can be extended throughout higher education and legal training. As such, SL provides interesting opportunities for enculturating liberty and prosperity by embedding it in higher education and legal training.
   
   
Conclusion

This paper initially set out to discuss liberty and prosperity from the perspective of the courts and the law. It was seen as a workable paradigm in which to dispense justice and ensure economic security through the fair and insightful application of the law. Nonetheless, it has been asserted that action from the judiciary is not enough in advancing the ideals of liberty and prosperity. Education is essential in propagating these values in society throughout an individual’s life span. In relating this to citizenship education and skills provision, the judicial philosophy of liberty and prosperity is then seen as compatible with lifelong learning. As such, it is argued that liberty and prosperity must be enculturated through pedagogical tools such as service learning in higher education and legal training.

Challenges exist in order to fully flesh out the ideals of liberty and prosperity, and utilize these in advancing social justice and social progress. First, a continued discourse on liberty and prosperity must be fostered within the legal profession. What constitutes an appropriate notion of political freedom and economic well-being must be spelled out as several questions arise from this duality of liberty and prosperity. How can judicial decisions ensure a favorable business climate granted it only hears cases brought upon the courts? How can the judiciary foster an equitable distribution of wealth given systemic inequalities existing in Philippine society? How can judges reconcile sometimes conflicting demands for social justice, national patrimony and business interests, such as in the case of extractive industries and special economic zones? These and other difficult questions must be tackled, and even tested in court, in order to demonstrate liberty and prosperity in practice.

Second, policy-makers must also contribute to that discourse by providing their own answers. This can be in the form of concrete learning programs that advance liberty and prosperity while serving the needs of their learners and immediate communities. Moreover, learning programs have to be situated along a coherent LLL strategy. The government and the learning profession have to collaborate in order to provide a road map for future LLL programs that will advance liberty and prosperity though citizenship education and skills provision. This must be done in the context of deepening institutional reforms and widening democratic spaces. With the current Philippine administration for example advocating a “straight path” in governance, overall LLL policy must also contend with the work of institutional reform while ensuring economic competitiveness.

Third, educators are challenged to concretize a LLL strategy involving the ideals of liberty and prosperity. This must be done through the use of pedagogical tools and the design of programs that reframe learning according to these values. Core competencies and learning outcomes must be explicitly situated and acquired along these lines, and learners must be allowed to demonstrate the acquisition of skills through meaningful projects that benefit communities.

In the end, liberty and prosperity can only be meaningful if it translates to the better exercise of political freedoms, deeper institutional reforms and civic involvement, as well as a more competitive economy that benefits the people rather than a few. While the philosophical foundations of liberty and prosperity are already in place, action awaits. This is the great task that the judiciary, government, academe and private sector might as well start to undertake.


[1] Holmes, Oliver. The Path of the Law. 10 Harvard Law Review 457 (1897).

[2] Panganiban, Artemio. Safeguarding the Liberty and Nurturing the Prosperity of the Peoples of the World. 82 Philippine Law Journal 178-193 (2006).

[3] ibid.

[4] ibid.

[5] British Broadcasting Corporation. “Snowden: Leaks that exposed US spy programme”. BBC US and Canada, July 1, 2013.

[6] Panganiban, Artemio. Safeguarding the Liberty and Nurturing the Prosperity of the Peoples of the World. 82 Philippine Law Journal 178-193 (2006).

[7] ibid.

[8] Universal Declaration of Human Rights, Sec. 22-27.

[9] Philippine Constitution, Art. 2, Sec. 9.

[10] Foundation for Liberty and Prosperity. About the FLP (2011).

[11] Schuetze, Peter. International Concepts and Agendas of Lifelong Learning. 36(3) Compare 289-306 (2006).

[12] Guile, David. The Learning Challenge of the Knowledge Economy (2010).

[13] Schuetze, Peter. International Concepts and Agendas of Lifelong Learning. 36(3) Compare 289-306 (2006).

[14] Macaranas, Federico. Lifelong Learning in the Philippines. Working Paper 198, International Labor Organization (2007).

[15] Alcantara, Patrick. Examining Theoretical Models of Knowledge and Learning in Industry: The Case of Philippine Tourism, its New Policy Rhetoric and Mandate. Masters dissertation for the Institute of Education, University of London (2013).

[16] Macaranas, Federico. Lifelong Learning in the Philippines. Working Paper 198, International Labor Organization (2007).

[17] Department of Education. The K-12 Basic Education Program (2011).

[18] Schuetze, Peter. International Concepts and Agendas of Lifelong Learning. 36(3) Compare 289-306 (2006).

[19] Southeast Asian Ministers of Education Organization (SEAMEO). The K-12 Toolkit (2011).

[20] Guile, David. The Learning Challenge of the Knowledge Economy (2010).

[21] Foundation for Liberty and Prosperity. About the FLP (2011).

[22] Puig (1999) cited by Elexpuru, Itziar. Social Commitment Amongst University Students Via Service Learning. Proceedings from Educational Innovations and Reforms in Countries around the World (2011).

[23] Service Learning 2000 Center. Service Learning Quadrants (1996).

[24] Muirhead, Bruce and Woolcock, Geoffrey. Doing What We Know We Should: Engaged Scholarship and Community Development. 1 Gateways: International Journal of Community Research and Engagement 8-30 (2008).

[25] Eyler, Janet and Giles, Dwight. Where’s the Service in Service-Learning? (1999)

[26] Cipolle, Susan. Service-Learning and Social Justice: Engaging Students in Social Change. (2010)

[27] Yaniz, Concepcion and Elexpuru, Itziar. Conocimiento, Communidades de Práctica y Valores In: Dirección para la Innovación: Apertura de los Centros a la Sociedad del Conocimiento (2004).

[28] Lave, Jean and Wenger, Etienne. Situated Learning. Legitimate Peripheral Participation (1991).

[29] Alcantara, Patrick. Towards a Lifelong Approach in Higher Education: Recontextualizing Service Learning within a Culturalist Frame. Academic research for Deusto University, Spain (2012).

[30] The UP College of Law. History of the OLA (2013).

Photo Credits:

Portrait (Patrick Alcantara) by James Anthony Mina
Students touring the SC (2010) by Kristian Jeff Agustin

photoby _ kristian jeff agustin

The Indigenous Peoples Rights Act: A Vehicle for Liberty & Prosperity

A successful lecture was delivered by Atty. Reynaldo U. Agranzamendez, Dean of the University of the Cordilleras College of Law on October 3, 2013 at the UC Theater, Baguio City. Aside from attracting a number of lawyers, academics and students, his discussion on “The Indigenous Peoples Rights Act (IPRA): A Vehicle for Liberty & Prosperity“ was also witnessed by guests from local government units, NGOs, and indigenous communities, who all gathered and filled the 700-capacity auditorium to standing-room-only, the biggest audience to attend a FLP-sponsored public event since the professorial chairs launching ceremonies held at the Metrobank Auditorium (Metrobank Plaza, Makati City).

His public lecture argued that the essence of Republic Act No. 8371, also known as the Indigenous Peoples Rights Act of 1997, was being eroded by the sale of ancestral lands for which a number of Baguio Ibaloi families now hold CALTs (or certificates of ancestral land titles).

Dean Agranzamendez is the appointed holder of the “Chief Justice Panganiban Professorial Chair on Liberty and Prosperity” for Luzon. A trial lawyer since 1975, Atty. Agranzamendez has handled several cases, among which is the case involving the death of American Peace Corps volunteer Julia Campbell in 2007. He has been the dean of the UC College of Law since 2000 and is a member of the National Conference for the Revision of the Rules of Civil Procedure. He was conferred the Master of Laws degree by San Beda College in June 2013.

A leading law school in the country, the University of the Cordilleras has produced at least 18 Bar topnotchers to date, including the two first-placers (Janet Abuel and Noel Neil Malimban). It is the only law school outside Metro Manila that boasts of producing two Bar first-placers.

Launched on December 20, 2011, the FLP was founded by retired Chief Justice Artemio V. Panganiban along with fellow retired Chief Justice Hilario G. Davide Jr., business icon Washington Sycip, and former UC President and Education Secretary Edilberto C. de Jesus. The FLP aims to “perpetuate the core judicial philosophy of Chief Justice Panganiban that jurists and lawyers should not only safeguard the liberty of the people but must also nurture their prosperity under the rule of law.”

As its first project, 10 professorial chairs were appointed to “conduct original research and delivery of scholarly outputs to advocate the promotion, appreciation, application and protection of the intertwining relationship of liberty and prosperity.” One each from the nine leading law schools in the country and one from the Philippine Judicial Academy were designated and will receive stipends from FLP and co-sponsor Metrobank Foundation.


3 October 2013
Dean Reynaldo U. Agranzamendez
University of the Cordilleras College of Law (Baguio City)
The Indigenous Peoples Rights Act (IPRA): A Vehicle for Liberty & Prosperity” (download PDF)

 

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Dean Agranzamendez delivering his lecture.

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Snapshot of the powerpoint presentation by Dean Agranzamendez

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Closing remarks by Dr. Edilberto de Jesus, former University of the Cordilleras President
and incumbent Foundation for Liberty and Prosperity Trustee (and Education Committee Chair)

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Dr. Edilberto de Jesus also served as  former Secretary of the Department of Education (DepEd).

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Interviews after the program

3 October 2013
Dean Reynaldo U. Agranzamendez
College of Law, University of the Cordilleras
The Indigenous Peoples Rights Act (IPRA): A Vehicle for Liberty & Prosperity“ (PDF)

Should the Economic Provisions of the 1987 Constitution be Amended?

USC versus UST Grand Debate

The University of San Carlos (USC) School of Law and Governance and the University of Santo Tomas (UST) Faculty of Civil Law engaged in a formal debate in Cebu on August 20, 2013. The event was spearheaded by FLP chair holder Atty. Joan Sarausos-Largo, Dean of the USC School of Law and Governance and hosted by the USC, at its CAFA Theatre. With the goal of arguing for or against the amending or removal of the economic restrictions held by the 1987 Philippine Constitution, the main argument tackled House Bill No. 1, which “seeks to revise the pertinent economic provisions of 1987 Philippine Constitution”, as proposed by Feliciano Belmonte, Speaker of the House of Representatives. This House Bill adds the statement “unless otherwise provided by law” as it recognizes the subjectivity of the economy. (Lifted from a related article by Lesley Delos Santos).

The panel from the USC consisted of Mr. Vince Joseph Cesista (speaker on necessity), Mr. Glen Sotto (speaker on beneficiality), Mr. Alvin Clyde Gregorio (speaker on practicability), and Atty. Daryll Bretch Largo (coach). The team argued against the amending of the 1987 Constitution; click to read the Position Paper in PDF.

Arriving safely in Cebu amidst the pounding typhoon Maring and massive flight cancellations in Manila on the same day, the UST was represented by Kim Apple Carvajal (speaker on practicability), Ron Robbie Rosales (speaker on beneficiality), Rolando Asuncion (speaker on necessity), and Ricky De la Cruz (coach). Their group affirmed the proposed revisions to the economic provisions of the 1987 Constitution: click to read the Position Paper in PDF.

Retired Chief Justice Hilario Davide Jr., a Cebuano, witnessed the success of the debate. He delivered the closing remarks on behalf of the Foundation for Liberty and Prosperity, where he serves as an esteemed trustee and chairman of its Governance committee.

President of USC Fr. Dionisio Miranda also graced the event.

 

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Front row (left to right):
USC President Fr. Dionisio Miranda, Retired Chief Justice Hilario G. Davide, Jr.,
and USC Dean Joan Sarausos-Largo.

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Mr. Alvin Clyde Gregorio (USC Debate Team) arguing against the proposition

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UST Debate Team:
Kim Apple Carvajal (practicability speaker), Ron Robbie Rosales (beneficiality speaker),
and Rolando Asuncion (necessity speaker)

Read More: “UST, USC engages in friendly debate”
(20 August 2013 Today’s Carolinian article written by Lesley Cara P. Delos Santos)

CJ Panganiban Awarded by the Teehankee Center For The Rule of Law

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The Claudio Teehankee Center for the Rule of Law conferred the 2013 Rule of Law Award to retired Chief Justice Artemio V. Panganiban on 18 April 2013—same day as the public lecture of PhilJA’s Chancellor Adolfo S. Azcuna—at the Ateneo Professional Schools in Rockwell. Retired Chief Justice Hilario G. Davide, Jr. presented the award, while Ambassador Manuel A.J. Teehanke delivered a short thank-you message.

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Given on the 95th birth anniversary of Chief Justice Teehankee, the  21st  Chief Justice was cited  for his exemplary public service culminating in his leadership of the whole Philippine Judiciary, for his lifelong commitment and service to a judicial philosophy that is based on Liberty and Prosperity, for his continued advocacy of the need to have a judiciary with independence, integrity, industry and intelligence, a revitalization of the legal profession in the tradition of its noble roots, and promoting the twin goals of safeguarding liberty while assuring the prosperity of all citizens, as liberty is an empty vessel without economic equity, all of which contributes towards a more stable and lasting Rule of Law.

The Teehankee Center honored Retired Justice Ameurfina A. Melencio-Herrera, Chancellor Emeritus of the Philippine Judicial Academy, with the 2013 Rule of Law Award on the same occasion.

The awarding ceremonies was followed by the blessing and opening of the Advanced Legal Studies Research Offices located at the Integritas Room, Ateneo Center for the Rule of Law.


More information on the ceremonies here:
“Proud Moment”
http://lifestyle.inquirer.net/102219/busy-as-bees-at-the-hyve

 


 

 Gratitude and Appreciation*

By

Chief Justice ARTEMIO V. PANGANIBAN

After witnessing the blessed and heartwarming events this afternoon, which featured not only the enlightening lecture of Justice Adolf Azcuna titled “Supreme Court Decisions on the Economic Provisions of the Constitution” but also the presentation of the Teehankee Center Rule of Law awards to Justice Ameurfina Aguinaldo Melencio-Herrera and me, what can I really say but to express my sincere “Thank you” to all the good institutions and people who have made these blessed events possible.

At the outset, let me say “Thank you” to the Chief Justice Teehankee Rule of Law Center, especially to its Chairman, Chief Justice Hilario G. Davide Jr and its Executive Director, Ambassador Manuel A.J. Teehankee, for selecting me (together with Justice Amor) as the 2013 Recipient of the Claudio Teehankee Rule of Law Award. Though I feel thoroughly inadequate and unworthy of this distinction, I humbly accept it as a duty to work even more fervently and diligently for the promotion of the rule of law in our country. I also thank them for inviting me to join the Claudio Teehankee Foundation as one its trustees. Although I have made it a personal policy to refrain from accepting any more responsibilities now that I have retired from active public life and although I am already loaded with several private endeavors, I am making an exception to this personal policy, in deference to Chief Justice Teehankee whom I admire, to Chief Justice Davide whom I esteem and of course to Ambassador Dondi Teehankee.

I have many reasons to thank our honored lecturer today, Justice Adolf S. Azcuna, first, for his scholarly and incisive presentation of some decisions of the Supreme Court on the economic provisions of the Constitution.

          Let me at this point respond briefly to some of the cases discussed by Justice Adolf. As he said, the Manila Hotel case (Manila Prince Hotel vs GSIS, Feb. 3, 1997) was quite contentious. Chief Justice Davide and I were with the minority. I wrote a dissent saying in brief that Manila Hotel was not a one of the “rights, privileges, and concessions covering the national economy and patrimony” that Section 10 of Article XII gives “preference to Filipino citizens.”

Also, to give undue advantage to Filipinos over a clearly superior Malaysian bid for the Manila Hotel violates basic fairness encapsulated in the principle of “leveling the playing field.” Nonetheless, we should still congratulate Justice Azcuna who was counsel for the winning petitioner. He was not yet a member of the Court at that time. He won fair and square, and under the rule of law, we accept his victory.

As Justice Azcuna pointed out, I was the ponente of the second case he discussed, La Bugal-B’laan vs Ramos (Dec. 1, 2004), which upheld the constitutionality of the Mining Law of 1995 by vote of 10-4 with Justice Adolf inhibiting because his former law firm was counsel for the private respondents. In the original decision promulgated on Jan. 27, 2004, which was voted 8-5, I was the leader of the minority. However, the Court had a yearlong deliberation on the Motion for Reconsideration, which I won at 10-4. I am happy that CJ Davide voted with me. You, my dear audience, admire great and persuasive lawyers during oral arguments in the Supreme Court. But I tell you, the arguments during the internal deliberations of the Court, which are confidential and are never known by the public, are at times more passionate and more telling than those in the open hearings.

The PLDT case (Gamboa vs Teves) discussed by Justice Adolf was promulgated on June 28, 2011 when both CJ Davide and I have already retired. Before talking any further, let me disclose that I am an Independent Adviser of PLDT. As summed up by our distinguished lecturer, the Court – through Justice Antonio T. Carpio – ruled that in determining the 40 percent maximum equity that foreigners may hold in public utilities, only the voting shares should be taken into account, not the entire capital stock that includes the non-voting shares.

In several speeches, I have discussed this controversial decision, but for today, let me just say that this is the first time the Supreme Court has spoken on the subject. Since 1936, when this nationalistic provision was included in the Constitution and onwards till the present Constitution, the Executive Department, particularly the Department of Justice and the Securities and Exchange Commission, have interpreted the constitutional provision to refer to the entire capital stock, not just to the voting shares.

On this basis, many foreign investors have brought equities here. I think it would not be fair and to penalize them or to deprive them of their investments now under the new ruling. They have relied in good faith on the representation of the authorities that they were not violating the Constitution and the law in making their investments, which are now found to be irregular under the new ruling. I think the decision should be made prospective, and investors should be given time to divest or to adjust to the new decision.

Because of the need to attract investors, there have been proposals to amend the Constitution. But some believe Charter Change is unnecessary. Only a more progressive interpretation is needed. The question is, in view of the changed and changing circumstances and requirements of our country, do we need to amend the Constitution, or just to interpret it more progressively to meet these new challenges?

As I wrote in my Inquirer column last Sunday, there are at least two ways of interpreting constitutions and laws, and I quote, “Should they be read according ‘to the letter that killeth or to the spirit that giveth life.’ Should they be construed on the basis of their text and words, or on their underlying rationale and philosophy? Should the Constitution be understood strictly on what its framers originally intended, or liberally taking into account the ever changing economic, social and political milieu?

“The textualists or originalists interpret according to the original intent of the framers, regardless of the dire consequences on current and future events. They rely on ‘dura lex sed lex.’ Their self-imposed duty is ‘to apply laws faithfully and desist from engaging in socio-economic or political experimentations,’ which they denounce as ‘judicial legislation.’

“On the other hand, the liberals or progressives believe in a living Constitution; one that grows with time, solves the vagaries of the present and anticipates the needs of the future. Chief Justices Davide, Puno, Sereno and I belong to this latter group who believe that jurists are not mere social technicians and legal automatons. Rather, they are social engineers who courageously fix their gaze on the underlying principles and overarching aspirations of the Constitution to nurture a free and prosperous nation.”

The United States Supreme Court has been struggling for a long time on these differing schools of thought of constitutional and statutory construction. During my term as Chief Justice, I visited US Justice Antonin Scalia, said to be the leader of the originalists in the US Court. I was inviting him to speak before the Global Forum on Liberty and Prosperity that our Supreme Court was sponsoring on October 18-20, 2006 just prior my retirement. He smiled and said, “Mr. Chief Justice, you do not really want me there. I would be useless in the Forum because I do not believe in international law. When I joined the US Supreme Court, I swore to defend and implement the US Constitution and nothing else. And I interpret it according to the original intent of our framers, which did not include international law. Please see my friend, Justice Anthony Kennedy. I am sure he will welcome an opportunity to expound on his international philosophies and ideas.”

True enough, when I saw Justice Kennedy later, he agreed to speak at our Global Forum even if via teleconferencing only, because he had already committed to be in another venue on those dates.

I mention this incident with Justices Scalia and Kennedy to show that we are not unique in our differences of interpretation. Even the US Supreme Court in divided on that issue.

May I further thank Justice Azcuna for being a leading member of the Panganiban Court and for espousing my philosophy of “liberty and prosperity under the rule of law.” He expressly wrote on this philosophy in his sterling ponencia in Bayan vs Ermita (April 25, 2006), in which our Supreme Court unanimously struck down the so-called “Calibrated Preemptive Response” or CPR policy of the Macapagal-Arroyo government and reiterated the maximum tolerance dictum in allowing public assemblies, rallies and demos as parts of the right of free speech. And beyond that, Justice Adolf’s decision decreed the creation and establishment of at least one freedom park in every city and municipality in our country.

Let me further thank Justice Azcuna for overseeing the completion, inauguration and full operation of the Philippine Judicial Academy Training Center in Tagaytay which was started by Justice Amor as the first Chancellor of PHILJA. I am sorry that I overlooked mentioning his name in my Inquirer column two weeks ago when I wrote on this topic.

The PHILJA Training Center was funded by a P300 million no-strings grant given by the Japanese government during my term as Chief Justice even if at that time, we did not have any architectural plans and specifications. Then Japanese Ambassador Ryuichiro Yamazaki handed me the check for P300 million on January 26, 2006 without any condition, not even the usual grant requirement to hire Japanese consultants and to use Japanese equipment in the project. Instead, my good friend, the ambassador, relied on my verbal assurance that the Center would be built and competed at the best terms and at the earliest time possible.

May likewise I thank Metrobank Foundation, especially its energetic president, former Cabinet Secretary Aniceto Sobrepena, not only for co-sponsoring the Professorial Chairs Program of the Foundation for Liberty and Prosperity, but also for hosting today’s merienda.

Finally, may I express my appreciation and gratitude to all the participants in this afternoon’s event, especially Dean Sedfrey Candelaria, himself one of the ten holders of the “Chief Justice Panganiban Professorial Chair on Liberty and Prosperity,” and the Ateneo de Manila for never tiring host activities of the Foundation for Liberty and Prosperity here at the Ateneo Professional Schools.

Maraming, maraming salamat po sa inyong lahat.

 

Chief Justice Panganiban Photo

The 21st Chief Justice of the Philippines, Hon. Artemio  Panganiban receives the CJ Teehankee Rule of Law Award, 2013 from former Chief Justice and Foundation Chairman, Hilario G. Davide. Looking on are Mrs. Elenita Carpio Panganiban, Amb.  Manuel A.J. Teehankee and  Dean of  Ateneo Law School , Sedfrey M. Candelaria. 

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JBC Member Mitoy Fernan Cayosa, Trustee of the Foundation cutting the ribbon for the blessing and opening of Integritas Research Offices

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Left to right: Dean Sedfrey M. Candelaria (Ateneo Law School), Mr. Jose G. Araullo (Founding Partner, Punongbayan & Araullo and Treasurer, Teehankee Foundation), Chief Justice Hilario G. Davide, Jr. (Ret.), Chief Justice Artemio V. Panganiban (Ret.), Justice Adolfo S. Azcuna (Chancellor, PhilJA), Mr Simeon Cua (Trustee, Teehandkee Foundation), and Ambassador Manuel A. J. Teehankee

 


* Transcript of the extemporaneous Closing Remarks of retired Chief Justice ARTEMIO V. PANGANIBAN during the Public Lecture of retired Justice Adolfo S. Azcuna, Chancellor of the Philippine Judicial Academy, held on April 18, 2013 at the Justitia Room, Ateneo Professional Schools, Rockwell Center, Makati, sponsored by the Philippine Judicial Academy of the Supreme Court and the Foundation for Liberty and Prosperity.

Supreme Court Decisions on the Economic Provisions of the Constitution

Incumbent Chancellor of the Philippine Judicial Academy (PhilJA) and retired Supreme Court Justice Adolfo S. Azcuna fulfilled his first commitment to the Foundation for Liberty and Prosperity as a professorial chair holder by delivering his lecture on Thursday, 18 April 2013. Aptly titled “Supreme Court Decisions on the Economic Provisions of the Constitution“, Chancellor Azcuna’s lecture contributed to the Foundation’s goal of trailblazing discussions and debates on the role of the judiciary in economic progress—especially in terms of businesses, investments, jobs, and livelihood. The PhilJA Chancellor was the fourth to deliver the Chief Justice Artemio V. Panganiban Professorial Chairs on Liberty and Prosperity, and the first and only to deliver outside a law school setting. Apart from former Chief Justices Hilario G. Davide, Jr. and Artemio V. Panganiban, the event was attended by retired Supreme Court justices, judges, government officials, lawyers, law school deans, professors, and students alike.

The event was successfully organized by the Philippine Judicial Academy in partnership with the Metrobank Foundation and the Claudio Teehankee Foundation, in cooperation with the Ateneo School of Law in its Rockwell Campus.


Supreme Court Decisions on the Economic Provisions of the Constitution

By Justice Adolfo S. Azcuna
Chancellor, Philippine Judicial Academy

April 18, 2013
Justitia, 4th Floor, Ateneo Professional Schools


Kindly view PDF file:
 Supreme Court Decisions on the Economic Provisions of the Constitution

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FLP’s Trustees Chief Justices Artemio V. Panganiban and Hilario G. Davide, Jr.
with Justice Adolfo S. Azcuna, PhilJA Chancellor and FLP Professorial Chair holder

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Retired Justices Ameurfina A. Melencio-Herrera (PhilJA’s Founding Chancellor)
and Bernardo P. Pardo (MCLE Office Chairperson) gracing the event 

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Retired Justice Pardo delivering the Opening Remarks

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Metrobank Foundation’s President and former Cabinet Secretary
Mr. Aniceto M. Sobrepeña delivering his message of support

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The Ateneo Law School’s Dean Sedfrey M. Candelaria
introducing the lecturer and professorial chair holder

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Retired Justice Azcuna delivering his lecture “Supreme Court Decisions on the
Economic Provisions of the Constitution” and answering engaging questions from the audience

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Acceptance of endowment and token of appreciation (left to right):
Dr. Edilberto De Jesus (Committee Chair and Trustee, FLP), Chief Justice Artemio V. Panganiban (Chairman and Trustee, FLP), Justice Adolfo Azcuna (Chancellor, PhilJA), Mr. Aniceto M. Sobrepeña (President and Trustee, Metrobank Foundation), and 
Dr. Placido L. Mapa, Jr.(Vice Chairman and Trustee, Metrobank Foundation)

Ateneo School of Law Holds Debate

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Spearheaded by Professorial Chair Holder Dean Sedfrey M. Candelaria, the Ateneo Law School held the first ever Chief Justice Artemio V. Panganiban Liberty & Prosperity Debate (Finals) on March 13, 2013 at the Justitia Hall of the Ateneo Law School, Rockwell Center. The debate was conducted in lieu of a formal lecture by Dean Candelaria, and served as an engaging follow-through of his lecture—this time letting the students take the lead in understanding the judicial philosophy of Liberty and Prosperity under the Rule of Law.

The purpose of the debate finals was to thresh out the constitutionality of the  Aurora Pacific Economic Zone and Freeport (APECO)  by arguing for or against the proposition to amend R.A. 9490 otherwise known as the Aurora Special Economic Zone Act of 2007 (Republic Act No. 10083). Debate teams impressed the  diverse audience, and earned accolades from the Chief Justice himself.

The teams consisted of Block 1-B’s Christopher Reyes, Leo Arman Galang, and Kenneth Varona (Affirmative Side: click to read the Position Paper in PDF); and Block 1-A’s Ponce Lopez, Abby Castelo, and Steffi Sales (Negative Side: click to read the Position Paper in PDF). The former argued the unconstitutionality of R.A. 10083, stressing the negative implications on social justice and human rights, while the latter weighed on the difference between implementation issues as questions of fact and enduring questions of law and justiciable controversies. After more than an hour of energetic exchanges and witty quips between the teams, the judges hailed the negative panel as champion.

The debate was successfully organized in partnership with the St. Thomas More: Society of Advocates of the Ateneo Law School.

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Chief Justice Artemio V. Panganiban Constitutional Law Debate (Finals)
at the Ateneo Law School’s Justitia Hall

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Affirmative opening speaker Mr. Leo Galang of Block 1-B 

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Block 1-A’s Ms. Steffi Sales speaks for the Negative panel

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The Affirmative side listening to the points raised by Ms. Steffi Sales of Block 1-A

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The  panel of judges  with ANC Debates champions Mr. Michael Victoriano and Ms. Kristel Tiu

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CJ Panganiban and Dean Candelaria in an engaging conversation during intermission

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Chief Justice Panganiban with wife Elenita C. Panganiban, and dean Candelaria
awarding “Best Debater” to Ms. Abby Castelo (Negative side)

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Negative panel accepts trophy for championing
the Chief Justice Artemio V. Panganiban Constitutional Law Debate Finals

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The Affirmative side accepts trophy for placing second

(Watch this video introduction courtesy of the St. Thomas More: Society of Advocates)

LINKS:

ATENEO DEBATE Re APECO Position Paper (Affirmative) – PDF

ATENEO DEBATE Re APECO Position Paper (Negative) – PDF

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The Powerful Judiciary and the Concept of Rule of Law in the Philippines

Dean Joan Largo, University of San Carlos CebuDean Joan Sarausos-Largo of the University of San Carlos, Cebu School of Law and Governance is the youngest and only lady recipient of the Chief Justice Artemio Panganiban Professorial Chair on Liberty and Prosperity. On 6 March 2013, she delivered her first lecture to a big audience composed of students, faculty, legal minds, and businessmen of Cebu at the Albert van Gansewinkel Hall, in fulfillment of her commitment to conduct original research that may help promote the judicial philosophy of Liberty and Prosperity under the Rule of Law.

Aptly titled “The Powerful Judiciary and the Concept of Rule of Law in the Philippines: Correlations, Consequences and Implications”, Dean Largo’s discussion probed highly relevant topics such as (1) Rule of Law in Developed Countries and in Asia; (2) Rule of Law in the Philippines, (3) Judicial Review and Rule of Law; (4) The Expanded Certiorari Jurisdiction of Philippine Courts under the 1987 Constitution; and (5) the Powerful Philippine Court, which opened up a brave discussion on the Supreme Court’s duty to solely decide matters that encompass “grave abuse of discretion”.

Her lecture was warmly commended by former Chief Justices Artemio V. Panganiban, now the FLP Chairman of the Board, and former Chief Justice Hilario G. Davide, Jr. Mr. Anecito Sobrepena, President of the Metrobank Foundation; Mr. Gordon Alan Joseph, President of Cebu Business Club; Mr. Philip Tan, President of Mandaue Chamber of Commerce and Industry; and Mr. Efrain Pelaez, Jr., President of Mactan Chamber of Commerce and Industry also expressed their warm remarks and appreciation. The event was also witnessed by the President of IBP Cebu City Chapter Atty. Earl Bonachita, the President of the IBP Cebu Chapter Atty. Ferdinand Pepito,  USC President Fr. Dionisio Miranda, SVD, and USC Vice President for Academic Affairs Fr. Anthony Salas, SVD, as well as CA Justices and Judges of Cebu, Mandaue, and Lapu-Lapu.

For the coming semester, Dean Largo will be organizing a debate that will thresh out the issue of “how powerful Philippine courts should be in upholding the Rule of Law in the country.” KJCA

 


The Powerful Judiciary and the Concept of Rule of Law in the Philippines:
Correlations, Consequences and Implications

By Dean Joan S. Largo

March 6, 2013
Albert van Gansewinkel Hall, University of San Carlos, Cebu


Kindly view PDF file:
The Powerful Judiciary and Rule of Law in the Philippines

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Outline of Dean Joan Largo’s Lecture and Presentation

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Left to Right:   Mr. Gordon Alan Joseph (President, Cebu Business Club), Mr. Anecito Sobrepena (President, Metrobank Foundation), Fr. Dionisio Miranda, SVD (President, University of San Carlos, Cebu), Retired Chief Justice Artemio V. Panganiban (Chairman, FLP), Retired Chief Justice Hilario G. Davide, Jr. (Head, Governance Committee and Trustee, FLP), and Atty. Daryl Bretch M. Largo (Professor, USC and Dean Joan Largo’s husband).

Retired Chief Justice Artemio V. Panganiban gives his closing remarks during the Professorial Lecture of Dean Joan Largo at the University of San Carlos, Cebu on 6 March 2013.

2nd Annual Report

(January 1, 2012 to December 31, 2012)

For 2012, the Foundation started the implementation of its Program of Action by launching the ten “Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity”, with holders appointed among the top nine law schools in the country, plus a holder in the Philippine Judicial Academy. Thereafter, it followed-through individual lectures and activities by its chair holders and built a good partnership with their law schools. The Foundation also earned significant support from the Metrobank Foundation, among other donors.

Continue reading

Global Forum on Liberty and Prosperity

How the Judiciary Can Help the Economy

* Address delivered by retired Chief Justice ARTEMIO V. PANGANIBAN during the “2012 ACCRA LAW-MAP BUSINESS LAW FORUM” held on November 29, 2012 at the Manila Golf  Club, Makati City.


I thank my esteemed companero, Atty. Avelino V. Cruz, Chairman of the ACCRA Law Office, for inviting me to speak during this wholeday forum commemorating the 40th Anniversary of his venerable law firm. I have known Ave and his wife Helen for many decades.

After the EDSA people power revolution in 1986, President Corazon Aquino offered him a seat in the Supreme Court. However, he respectfully declined, preferring to remain in his job as then Deputy Prime Minister, second in command to then Vice-President Salvador Laurel, who was named concurrent Prime Minister.

If you will remember, the government at that time was organized according to the 1973 Constitution, which instituted a semi-parliamentary government. This was the form of government inherited by Mrs. Aquino, to which she conformed her government when it began in February 1986. However, a year later, the 1987 Constitution was crafted. It restored the presidential system and abolished the Offices of the Prime Minister and the Deputy Prime Minister.

That’s the saga of how Ave lost his stratospheric government job. Had he accepted the offer for him to be an associate justice, he could have been Chief Justice a decade later. And there would have been no Chief Justice Hilario G. Davide Jr and Chief Justice Artemio V. Panganiban because, though younger in years than both Chief Justice Davide and me, he would have been more senior to us in the totem pole of the Supreme Court. And I would not have been invited here as a retired Chief Justice!

I am glad to meet the members of the Management Association of the Philippines, especially BPI President and CEO Aurelio R. Montinola, whom I congratulate for having been just named MAP Management Man of the Year 2012. Prior to my Supreme Court stint, I was active in the MAP and, in fact, was at one time the Chairman of the Management Man of the Year Committee. I therefore know how stringent the standards are for this award. And having known Gigi for many years now, and being an independent director of BPI, I also know that the award is well deserved and, in fact, long overdue. Palakpakan po natin si Gigi.

 

Liberty and Prosperity Under the Rule of Law

In inviting me here, Ave Cruz asked me to speak on the interdependence between law and the economy, and specifically to discuss landmark Supreme Court decisions affecting the economy and business. I am glad to do so because my own legal and judicial philosophy, “liberty and prosperity under the rule of law,” calls for a symbiotic calibration of the relationship of law and business, and of good governance and good economics.

I recall that to close my term as Chief Justice, I convened a Global Forum on Liberty and Prosperity on October 18-20, 2006. More than 300 jurists and lawyers from all over the world, including several chief justices, came. The Chief Justice of Canada, the Honorable Beverley McLachlin so enjoyed her visit here that she and her husband stayed for three more days after the Forum. In fact, she said that my legal philosophy works best “under the rule of law” which she spouses as her own philosophy. Hence, I agreed to label my legal philosophy in its complete form as “liberty and prosperity under the rule of law.”

Global Forum on Liberty and Prosperity

The academe added flavor to the Forum by awarding honorary doctoral degrees in law to three notables, Chief Justice McLachlin by the Ateneo de Manila, Russian Chief Justice Vyacheslav Levedev by the University of Santo Tomas and French Chief Justice Guy Canivet by the Far Eastern University. McLachlin and Levedev are still sitting but Canivet, like me, has retired.

Ladies and gentlemen, amid the serious economic crisis engulfing the developed world, the Philippines has shown remarkable resilience. This year, our economy grew 6.3 percent in the first quarter, 5.9 percent in the second, and a fantastic 7.1 percent in the third, for an over-all 6.5 percent growth for the first nine months of the year, making the Philippines the best performer in the Asean Region and the second best in Asia – second only to China. Small wonder, Christine Legarde, the first woman Managing Director of the International Monetary Fund, hailed the Philippines for being “probably the only country in which (the IMF) increased the growth forecast as opposed to other places in the world where (the IMF) actually decreased (its) forecast.”

Concededly, the responsibility for propelling our economy and alleviating poverty rests primarily with our President and Congress, together with the private business sector, which is the recognized engine of economic growth in our democratic free enterprise system.

Nonetheless, the question frequently asked is how the judiciary can help the economy. My stock answer is that, in judging controversies involving the economy, the judiciary must defer as much as possible to the political branches of government, the President and Congress in collaboration with the private sector.

In my humble view, jurists and lawyers should not only safeguard the liberty of our people but must also nurture their prosperity under the rule of law. Thus, their objective should be two fold: justice and jobs; freedom and food; ethics and economics; democracy and development. Liberty and prosperity must always go together; one is useless without the other.

During my term as a jurist, I tried to implement this legal philosophy by interpreting the Constitution and the laws in this manner: 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.

The first part of the philosophy – the safeguarding of liberty – is a long held tradition of the legal profession and the judiciary, both here and abroad. The primacy of liberty is universal. It is enshrined in the Magna Charta of the British; the Bill of Rights of the Americans and in the struggle for freedom of our own people, from Lapu-Lapu to Andres Bonifacio to Jose Rizal and to Ninoy Aquino. It is reflected in many Supreme Court decisions that uphold the rights to free speech, to peaceful assembly, to liberty of abode, to due process, and to travel freely.

The second part of the philosophy– the nurturing of prosperity under the rule of law – is fairly new. Not given enough emphasis in the past are the economic freedoms of our people, like the right to own and enjoy property, to the pursuit of happiness, to adequate social services, to a rising standard of living, to an improved quality of life, to economic well-being and to be free from poverty, disease, disability and destitution. In this morning’s session, I will concentrate on this part of my legal philosophy by discussing three landmark decisions of our Supreme Court, (1) Tañada vs Angara, (2) La Bugal B’laan vs Ramos and (3) Gamboa vs Teves.

Let me preface my discussion by saying that the judiciary is a passive branch of government and is not required or expected to initiate or espouse actions or programs to improve the economy or to upgrade the living conditions of our people. On the other hand, the political branches of government, namely, the President and Congress, are actively mandated to develop the economy and to promote the well being of our nation. In the fulfillment of this duty, our people shall judge them. And if they fail in fulfilling such duty, our people can replace them during periodic elections. Consequently, on matters involving the economy and prosperity, judges should defer to our political leaders.

To promote this legal philosophy, I formed last year, with the help of several friends like retired Chief Justice Hilario G. Davide Jr., business icon Washington Sycip and former Education Secretary Edilberto C. de Jesus, the Foundation for Liberty and Prosperity. Last September 18, 2012, the FLP with the co-sponsorship of the Metrobank Foundation and the Metro Pacific Investments Corporation launched, as its initial project, 10 professorial chairs on liberty and prosperity in nine leading law schools and one in the Philippine Judicial Academy.

Parenthetically, let me add that it is not easy to convince the judiciary to embrace the economy and business. In its March 16, 2008 issue, the New York Times Magazine reported that it took the US Chamber of Commerce more than 30 years to make the US Supreme Court understand and “be receptive to business.” We have yet to do that in our country.

Globalization, Deregulation, Privatization, Liberalization

Let me now discuss the three decisions I earlier mentioned. For many decades since World War II till the early 1990’s, the protection of native goods and local services was the popular policy here and in many other countries. Pursuant thereto, Congress barred the importations of foreign goods and services, and set up high tariff walls and taxes to bar them. In this way, local manufactures and service products were protected, promoted and patronized.

Later, however, nations became more interdependent, and protectionism became obsolete. The World Trade Organization (WTO) was organized to tear down tariffs, duties, import quotas and other trade barriers. Economic paradigms shifted from government control to deregulation, from government ownership to privatization, from national sovereignty to globalization and liberalization of trade. Joining this worldwide trend, our Senate ratified the Philippine adherence to WTO.

Citing the provisions of our Constitution mandating “economic nationalism,” some minority senators challenged the constitutionality of the Senate ratification of the WTO Treaty. Using deferential interpretation in Tañada vs. Angara (May 2, 1997), the Supreme Court, in a decision I had the honor of authoring, unanimously upheld the ratification, ruling in this wise:

“While the Constitution has 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 bases of equality and reciprocity, and limits the protection of Philippine enterprises only against foreign competition and trade practices that are unfair.”

Exercising judicial restraint, the Court refused to pass upon the wisdom or viability of deregulation and globalization. It said, “Ineludibly, what the Senate did (in ratifying the WTO Treaty) was a valid exercise of its authority. As to whether such exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between the elected policy makers and the people.”

Looking back, let me reminisce that initially, I had some difficulty explaining to my Supreme Court colleagues the meaning of the new buzzwords of globalization, deregulation, privatization and liberalization detailed in the WTO Treaty, which was contained in 36 book-size volumes. The justices were schooled and believed in protectionism as the road to economic prosperity. Further, the petitioners indeed had struck a familiar argument that the Constitution, which was crafted in 1987, was protective of home grown products and services. However, I had to point out that the Charter also recognized and adopted the generally accepted principles of international law as part of the law of the land.

At the start, there were dissenting and doubting voices; later however they all concurred. But when I circulated the decision I crafted for their signatures, only four fully concurred while 10 concurred only “in the result,” meaning they agreed to dismiss the petition but not necessarily with my reasons. I felt it was a disservice to the nation to do that, because our people will not know the collective reasons for our judgment.

So, I asked for a re-deliberation and challenged the unbelievers to write their own positions. But in the end, 13 of the 15 justices (including me) concurred in full, with only two retaining their “in the result” agreement, thereby unanimously enshrining in our jurisprudence the doctrine of deferential interpretation on issues involving the economy and prosperity.

At bottom, the case could have been decided either way by the citation of the proper parts of the Constitution that supported one’s legal philosophy. What carried the day was my call for deference to the political branches, to Congress and to the President whom our people mandated to save them from destitution, disease and disability.

Constitutionality of the Mining Law

Let me now move to another major decision affecting business, La Bugal-B’laan Tribal Association vs Ramos, involving the constitutionality of the Mining Law of 1995 (RA 7942), the Implementing Rules and Regulations or IRR of that law (namely, DENR Administrative Order or DAO 96-40 issued December 20, 1996), and the Financial and Technical Assistance Agreement (FTAA) entered into by President Fidel V. Ramos with the Western Mining Corporation, a foreign company. The original decision of the Supreme Court issued on January 27, 2004, by vote of 8-5 (with one justice taking no part and one seat vacant) struck down as unconstitutional the major provisions of the Mining Law, the IRR and the FTAA.

However, on reconsideration, the Court on December 1, 2004 reversed itself by a more definitive vote of 10-4 (with one justice still abstaining). It vigorously and fully upheld the constitutionality of the Mining Law, the IRR and the FTAA. The issues revolved around the proper interpretation of the word “control” in the exploration, development and utilization of natural resources, particularly as they related to FTAAs. As the ponente or writer of that decision, I relied once more on my legal philosophy of deferring the political branches of government in resolving controversies affecting the economy, Thus, I roped the Decision on this anchor:

“The Constitution should 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 Congress and the President 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.”

However, the four dissenters led by Justice Antonio T. Carpio, wanted the Court to restrict the President’s discretion in defining the specific terms and condition of FTAAs, especially the grant of management prerogatives and financial benefits to foreign entities entering into FTAAs with the government.

Given however the nature and complexity of FTAAs, the humongous capital required, the complicated technology needed, and the intricacies of international trade, the Court gave a wide degree of discretion to the President who had the advantage of getting the needed technical expertise to enable him to discharge his mandate to eradicate “the grinding poverty of our people.”

 

Interpreting the 60-40 Rule in Public Utilities

Finally, let me discuss a very recent decision, Gamboa vs Teves, promulgated by the Supreme Court on June 28, 2011, that involved also the interpretation of the word “control,” this time as it applies to public utilities in general and to the Philippine Long Distance Telephone Company in particular.

Inasmuch as this case involves PLDT, let me formally disclose what is already contained in my personal website that I have been sitting as an independent member of the board of advisers (not board of directors) of PLDT since mid-2009. That was well after I had retired from the Supreme Court in 2006. In that independent capacity, I do not represent PLDT’s management or any stockholder. So the views I express are mine, and not necessarily those of PLDT.  Having clarified that, let me now go back to the main subject of my discourse.

Section 11 of Article XII of the Constitution states that (1) only Filipino citizens or “corporations… at least 60 per centum of whose capital is owned by such citizens” may operate a public utility such as a telephone company; (2) “the participation of foreign investors in the (board of directors) of any public utility enterprise shall be limited to their proportionate share in its capital,” and (3) “all the executive and managing officers of such corporations must be citizens of the Philippines.”

As we all know, the capital stock of a corporation may be divided into (a) “voting” or “common” and (b) “non-voting” or “preferred” shares. Only voting or common shares can be used to elect members of the board of directors. Non-voting or preferred shares cannot; but they may legally be used in voting on eight very important issues, like in disposing of all or substantially all of the corporate assets; in incurring or increasing bonded indebtedness; or in merging the corporation with another; or in dissolving the corporation; etc.

The Supreme Court disposed, by vote of 10-3 with two seats vacant and with Justice Carpio as ponente, that the word “capital” in the cited Charter provision “refers only to shares of stock entitled to vote in the election of directors and thus in the present case only to the common shares, and not to the total outstanding capital stock (common and non-voting preferred shares).”  Hence, according to this Decision, foreign investments in public utilities, like PLDT, should be limited to only 40 per cent of the voting shares. The Decision said that this interpretation will ensure that Filipinos will “effectively control” public utilities because “it is the board of directors that controls or manages a corporation.”

To assure such control, the dispositive portion of the Decision directed the chairperson of the Securities and Exchange Commission (SEC) “to apply this definition of the term ‘capital’ in determining the extent of allowable foreign ownership in respondent Philippine Long Distance Telephone Company, and if there is a violation of… the Constitution, to impose the appropriate sanctions under the law.” Parenthetically, while the dispositive portion of the Decision alluded to “respondent” PLDT, the petitioner did not implead the telephone company in his petition.

The dissenters, led by Justice Presbitero J. Velasco Jr., argued that the word “capital” should include not only the voting but also the preferred and all other shares because this was the interpretation given by the framers of the current and previous Constitutions since 1935.

The Velasco dissent further said that the Constitution already assures Filipino control of public utilities because, in electing directors, foreigners can use only 40 percent of the common shares they hold, even if they owned more than that percentage. Hence, “they will never be in a position to elect majority of the members of the Board of Directors… although they (may) actually own more than 50 % of the common shares.” Consequently, Filipinos will always control the board. Also, only Filipinos may be “executive and managing officers” of public utilities, thus doubly ensuring Filipino control. In point of fact, of the 13 directors of PLDT, only two are foreigners (Japanese) while the rest, or to be exact, 11 are Filipinos.

I will discuss later in this speech the main ruling of the Court that only the voting shares should be considered in computing the 40 percent maximum equity that foreigners may own in partly nationalized corporations like public utilities.

In the meantime, let me take up, with due respect, some egregious errors of facts in the Court’s Decision and its misconception of business principles. The Decision observed that the par value of PLDT’s voting or common shares is only P5.00, yet they each earned P70 in cash dividends in 2009. (Parenthetically, this is erroneous because cash dividends declared in 2009 were double that amount. But for purposes of our discussion, let us assume the Court’s findings of fact are correct.) In contrast, the non-voting or preferred shares have a par value of P10.00, but their cash dividends was “a measly P1.00 per share… In other words, preferred shares have twice the par value of common shares but they cannot elect directors and have only 1/70 of the dividends of common shares.”

Then, it concluded, “This undeniably shows that beneficial interest in PLDT is not with the non-voting preferred shares (mostly owned by Filipinos) but with the common shares (mostly owned by aliens), blatantly violating the constitutional requirement of 60 percent…  Filipino beneficial ownership in a public utility… In short, Filipinos hold less than 60 percent of the voting stock, and earn less than 60 percent of the dividends of PLDT.” (bold types in original)

The pure legalists and the uninitiated in business may find logical the foregoing disquisition in the Decision. But I respectfully submit that it is neither legal nor logical. It is not legal because the Constitution does not speak of dividends. Nowhere does it talk of how much each kind of shares should earn. The Charter speaks only of the ownership or “effective control” of the “capital” of a corporation engaged in public utilities, not of “benefits.”

It is not logical because it ignored the market value of the shares and their rates of returns. The decision itself noted that “the PLDT common shares with a par value of P5.00 have a current stock market value of P2,328 per share, while PLDT preferred shares with a par value of P10.00 per share have a current stock market value ranging from… P10.92 to P11.06 per share.”

However, the Decision failed to use this critical information in computing the actual and real financial benefits. Clearly, on the basis of the facts given by the majority, an investor needs about P11.00 to buy a PLDT preferred share, which would earn P1.00. Here, the rate of return on the investment is nine percent. On the other hand, to acquire a common share, an investor must pay P2,328 yet earn only P70 or only about three percent (the correct figure is P140 which yields a rate of return on investment of six percent).

On this basis, preferred shares, which are mostly held by Filipinos, earn three times more than the common shares. So, it is neither logical nor correct to say that “beneficial ownership” in PLDT rests with foreigners just because they hold more common shares than Filipinos.

Clearly, the par values of shares are not determinative of their real worth or earning potential. Investors buy shares from the company or from the stock market, depending on their appetite for risks, not on the shares’ par values. Conservatives invest in preferred shares because they are less risky and their earnings, like bank deposits, are fixed. The adventurous choose common shares because they could potentially be worth much more. Or much less, if the company flops.

While common shares may yield smaller dividends, they can – in time – increase their market value. Sometimes, a company strikes oil, or perfects its high tech products. When this happens, the market value of common shares exponentially grows while the yields of preferred shares remain fixed.

A classic example of exponential growth is Microsoft, which made Bill Gates the richest American almost overnight. Another example. In 2001, PLDT’s net income was about P3.4 billion; its common shares had a market price of P417. Then, it expanded into the high-risk but high-reward wireless digital cell phone technology. In just four years, in 2005, its net income exponentially soared ten times to P34 billion. And kept on growing since then. In 2010, its net income was P40 billion and its common shares’ market price rose to P2,554.

Of course, in bad times, common shares could collapse and reduce billionaires to paupers, as has happened in the Philippines in 1997, and in the US in 2008. To recall, in 1997, the Asian financial crisis hit Thailand first and then spread everywhere. Because of this, the real estate business in the Philippines collapsed. The foray of Metro Pacific Holdings into Fort Bonifacio failed and almost bankrupted the company. We are also familiar with the financial crisis in 2008 that started in the United States and resulted in the collapse of several heretofore financial untouchables like Lehman Brothers, Merrill Lynch, American International Group (AIG) and Washington Mutual, the largest savings and loan association in the United States.

But then, that’s what business is all about. It is about taking and managing risks, not about legislating profits or promulgating decisions awarding economic benefits. It is not for the faint-hearted or for jurists to intrude into unnecessarily and imprudently.

In sum, the Decision’s theoretical requirement that 60 percent of all financial benefits in a public utility must go to Filipinos regardless of how much they invested is totally unfair and blatantly ignores the most fundamental tenets of investments. Under this absurd thesis, no foreigner will invest in our country. For the most basic rule in a free market economy is that investors share in the profits and other benefits of an enterprise based on the amount they invested and the risks they assumed.

 

Applicable to All Kinds of Shares?

The Court’s ruling on the 60-40 capital stock sharing did not end with the Decision. On October 9, 2012, it issued a Resolution – again by vote of 10-3, with one justice taking no part, with one seat vacant – that not only denied the motions for reconsideration with finality but also expanded the coverage of the original Decision dated June 28, 2011.

This original Decision held that “Mere legal title is insufficient to meet the 60 percent Filipino-owned “capital” required in the Constitution. Full beneficial ownership of 60 percent of the outstanding capital stock, coupled with 60 percent of the voting rights, is required. The legal and beneficial ownership of the 60 percent of the outstanding capital stock must rest in the hands of Filipino nationals.”

This statement was expanded in the subsequent Resolution of October 9, 2012 to mean that “such requirement appl(ies) uniformly and across the board to all classes of shares, regardless of nomenclature and category, comprising the capital of a corporation.” Hence, even preferred shares, which have no voting rights for directors, should be owned at least 60 percent by Filipinos because such preferred shares may still vote in eight instances, like in the amendment of the articles of incorporation and in the increase or decrease of the capital stock.

“Thus,” the Court said, “if a corporation, engaged in a partially nationalized industry, issues a mixture of common and preferred non-voting shares, at least 60 percent of the common shares and at least 60 percent of the preferred non-voting shares must be owned by Filipinos… In short, the 60-40 ownership requirement in favor of Filipino citizens must apply separately to each class of shares, whether common, preferred non-voting, preferred voting or any other class of shares.”

This expansion means that the present practice of issuing preferred voting shares to cover the short fall in common shares might no longer be deemed compliant with the 60-40 constitutional requirement. For example, let us say that a public utility corporation has 1,000 common shares, 1,000 voting preferred shares and 1,000 non-voting preferred shares.

Let us further assume that foreigners owned 600 of the common shares, but none of the voting preferred and none of the non-voting preferred. Under the expanded ruling, the corporation would still be in violation of the Constitution because, even if all the voting preferred and non-voting preferred are Filipino owned, still 60 per cent of the common are owned by foreigners.

Note that of the 2,000 voting shares composed of 1,000 common and 1,000 voting preferred, foreigners own only 600 or only 30 percent of all voting shares, yet the Decision would still consider the corporation to be in violation of the Constitution despite the plain fact that, under this example, foreigners cannot, repeat cannot, be in control of the corporation.

One more point, corporations in the Philippines, in the United States and elsewhere issue what are called Deposit Receipts, which are bought and sold in the stock markets. Under this program, Filipino corporations purchase shares of stock and then sells Philippine Deposit Receipts or PDRs corresponding to each of the shares, with the buyers of the PDR receiving the dividends and other benefits due the underlying shares but the Filipino sellers remain the owners and exercise the voting rights of the underlying shares. Subject to nationality requirements, PDRs could even be exchanged with the underlying shares.

PDRs were not tackled by the Supreme Court, neither in the original Decision or in the subsequent Resolution, giving rise to the conclusion that the PDR program remains constitutional and legal even under the strict interpretation given in the Gamboa case, and may be a way by which foreigners who are interested only in reaping the economic benefits may participate when the 40 percent foreign equity limit in partly nationalized corporations is reached.

Recently, the Securities and Exchange Commission has issued draft “Guidelines, Rules and Regulations” to comply with the order of the Supreme Court to apply the newly minted definition of the term “capital.”

Prudently, the SEC has called for a public hearing and for position papers by various stakeholders before finalizing these guidelines. I believe, it is not just the SEC that should be at work here but also the entire Executive Branch because ultimately, the Rules will reflect the entire Philippine government’s economic policy, especially vis-à-vis foreign investments.

The Supreme Court, it seems to me, has revived the old debate on the whether the Constitution of the Philippines should be interpreted to focus on economic protectionism, or whether economic protectionism should be balanced with the world reality that no nation can isolate itself in these times of liberalization and globalization, as was done in Tanada vs Angara.

Otherwise stated, should the Court impose upon itself the responsibility of propelling the economy, of creating jobs, of alleviating poverty, of creating wealth and enhancing prosperity? In short, should the Supreme Court clothe itself with the prerogative to choose which economic paradigm is more beneficial or wise for our people: protectionism or globalization and liberalization. Or, should it continue to use self-restraint and deference to the political branches of government on matters involving the economy?

As I said at the beginning, our economy has shown resilience amid the gloom shrouding the traditional bulwarks of prosperity, the Eurozone and the United States. How our government handles this most recent Supreme Court Decision involving the interpretation of the 60-40 ownership structure in the key businesses and industries, especially those engaged in public utilities, transportation, and natural resources, will certainly affect our momentum of growth that is the envy of many countries and economists. My own position should be clear to everyone by this time: In matters affecting the prosperity of our people, the judiciary can help the economy by deferring to the political branches of the government and to the private business sector which, to stress, is the recognized engine of growth in a regime of free enterprise.

 

Maraming salamat po.

“Katarungan” as the Filipino Concept of Justice

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Dean Jose Manuel I. Diokno, holder of the “Chief Justice Panganiban Professorial Chair on Liberty and Prosperity” delivered his first lecture entitled “The Philippine Judiciary- Problems and Prospects” on November 5, 2012 at the Natividad Fajardo Hall of the Bro. Andrew Gonzalez Building at the De La Salle University College of Law.

Dean Diokno Discussed the Filipino concept of justice or “katarungan.” From there, he moved into what ails our judicial system and his proposed solutions. Basically, he said that our Rules of Court are based on the American system, which in turn is anchored on jury trial. This latter mode places high wall on trial proceedings so as not to unduly influence the jury members who are not lawyers. In the Philippines however, trials are conducted and decided by judges who are knowledgeable in the law and need not be protected from media hype.

The lecture program included Welcome Remarks by La Salle Vice Law Dean Jocelyn Cruz, a Message from Metrobank Foundation President Aniceto Sobrepeña and Closing Remarks from FLP Chairman and retired Chief Justice Artemio V. Panganiban.

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Enthusiastic Law students at the registration booth

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Welcome remarks by Atty. Jocelyn Cruz, Vice Dean of DLSU College of Law 

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Closing remarks by  retired Chief Justice Artemio V. Panganiban

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Special guests with tokens of appreciation from Dean Diokno and the DLSU College of Law

5 November 2012
Dean Jose Manuel I. Diokno
De La Salle University College of Law
“The Philippine Judiciary: Problems and Prospects” (PDF)

What is the Role of the IMF During Sovereign Debt Crisis Situations?

Finance & Law: Understanding the Institutional and Functional Role
of the International Monetary Fund During Sovereign Debt Crisis Situations

CJ Panganiban Professorial Chair on Liberty and Prosperity

By Dean Sedfrey M. Candelaria

September 19, 2012
Justitia Room, 4th Floor, Ateneo Law School

The Honorable Chief Justice Artemio V. Panganiban, Mrs. Panganiban, the Honorable Chief Justice Hilario G. Davide, Jr., Mr. Aniceto M. Sobrepeña, whom I call with an endearment term Sangko Chito, you’ll have to inquire later on, the two very distinguished Deans and Co-Chairholders Dean Nilo Divina and Dean Andy Bautista, Atty. Vannie Vallente, my very loyal Associate Dean, whom I call my “Sweeper”, my co-faculty and co-workers in the linear  of learning, Mrs. Cecil Mejia and Mr. Bulaon, my law students, Ladies and Gentlemen and Friends.

I take this opportunity first of course to congratulate the Foundation for Liberty and Prosperity including Metrobank Foundation for taking up this opportunity to engage the Law Schools. It’s a very timely opportunity for us because it is a time when I think legal education in this country is fast developing. Last year, we had a convocation in legal education where an invitation was sent to various law schools around the country where we discussed the developments in legal education and, in preparation for that convocation sometime last year, we found out that it was almost 30 years ago that the last convocation in legal education was done at the UP Law Center. Thirty years, that made a lot of difference. Today we have a JD Program and most law schools are encouraged in fact, mandated to go to a JD Program. The JD Program was introduced in the Ateneo Law School in 1991. It was a leap of faith, a lit in the dark for us, then Dean Recuardo delos Angeles tried to embark the program within the same cut as the JD Program in the United States. But the JD Program in the Philippines will take a different complexion altogether because of the legal culture, the history and experience of this country. And this is what is very important to define, the legal education and the culture that we need to bring into this conference.

The conference of Liberty and Prosperity is one that perhaps comes close to the experience of citizens right now. As we have listened to Chief Justice Davide’s introduction on Chief Justice Panganiban’s philosophy, it is very much imbedded in our Constitution.

When the subject matter was actually raised to us at the breakfast meeting at the house of Chief Justice Panganiban, that they will launch or do a road show on Liberty and Prosperity, I did not hesitate to volunteer immediately. It is a subject matter that I think that will put this whole discussion into a framework. And I take into account, of course, a standard position of the Supreme Court, “Tañada versus Angara” as a starting point for us Constitutional Law and now on review by the Court here. It’s a landmark decision, not only because it was penned by then Justice Panganiban of course, but it gives us a framework on where our lives are now, in a sense, put into the hands of international economic institutions. Our first initiation, of course into international economic institutions, is the World Trade Organization. And that is where Tañada begins, to initiate us into the set of rules that governs states today, on law governing international finance, trade and even development. The WTO case is very important from the point of view of international law. It affirms a principle that defines automatic application or incorporation if you have probably been answering in exams, the doctrine of incorporation related to Facta Sunta ________.  That obligations must be complied with in good faith.

And that is where I’d like to begin my discussions because it is not very easy to appreciate in a sense the so called role of most of the international organizations today. For one I’ll show you a picture here that says “No to EU Austerity”, “Yes to Democracy”, “No to Privatization”. This is a scene, somewhere in Europe and for anyone who does not perhaps understand the topic in the very first place, we always say it sounds great to me. And this is exactly where I would like to bring you today.

To bring you back towards the cycle of Sovereign Debt Crisis that began. It began in the doors of Europe at one time because it was in fact where the dealing nations began and it took a cycle when the developing country borrowers and today lands back into the heart of the Euro zone. We have countries now in the Euro zone like Greece, Portugal, Ireland, Italy, and mind you Spain, our former Columbian _____ in sovereign debt.

How does this relate in a way to liberty and prosperity? My entry point is a subject matter that’s again very close to my heart. I must admit, Mr. Chief Justice Panganiban that, when I took this lecture assignment, I said, “You have given me an opportunity to refresh what I have, in a way, embarked on more than 25 years ago when I did the graduate research on the sovereign debt problem of developing country borrowers”. But that was the scenario at that time. You had several sovereign debt crisis, financial crisis in Asia in the 90s then you had  the slump in the United States that triggered in a way the Euro zone crisis in 2009 to 2011. For a while I’ve had some reflection on this I said “when will I have the opportunity to write another chapter in this original research that I think I may have to circle, put a dot on” and you just gave me the opportunity Mr. Chief Justice and now I am more tempted to embark on a book after this.

So I’d like to begin by giving you a short outline of what  I plan to do. This will now be the start of a more legalish language. Pardon to non-lawyers but I think it’s something I’ll try to put down on the level of a ________ person’s knowledge. Economists would be very very much at home anyway with the language and I’m sure Chito would be comfortable with this.  He will have a lot, in fact, to share on matters of national economic policy making. I’ll try to this understanding the constitutional functional growth of International Monetary Fund during sovereign debt crisis situations.

I’ll begin doing just a little survey of how sovereign debt crisis had actually been with us since time immemorial until we say the Conference of ___________.  It’s been there with us, it will be there to stay. The question is, how do we cope with it? It’s like the floods in Manila, the floods in the regions. And if I may change to say, adaptation. How do we adapt to certain situations. Other  immediable rules right now that can actually be put in place that will deal with the ravages that save on economic disaster or financial crisis. How do we protect people in that context? How do we adapt to the situation? So the second major discussion is where I’d like to spend a little more time working through the history of IMF involvement on sovereign debt renegotiations. I will look at the parallels from the early stages of state insolvency and reaction of the International community to how debtor countries are actually “made to behave”.

In the free World War and the post World War, where the IMF, together with the three grand Breton Woods Institutions that played the role trying to keep the world economy today. And then move towards the new era of crisis. And how I have now would have to actually dealing with certain countries that are very very protective of the sovereign rights such as the Asian Tiger economies, including, of course now Eurozone where you have one of the most sophisticated regional organizations that have reached its pinnacle of integration through a common currency or monetary unit. That perhaps is the heart of any integration of any economy once you reach that level. We have been trying to do that in Asia, an Asian currency unit. We don’t know whether we will see the day when that will come.

The last point will be some conclusions that will make some reference to human rights standards and how we can actually achieve in the context of what we call adjustment progress, respect for fundamental economic rights of people without having to sacrifice civil political rights. The picture I showed you is typical of a reaction of a body politic that will have to undergo austerity programs that is experience of many developing countries in the past. When adjustment programs had to be required for purposes of actually reconstructing economies that are emerging out of what we might call deep financial crisis. It hurts, it hurts to rebuild an economy especially in other situations like transition societies. We have countries, and fortunately, of this for us, we have countries in Sub-Saharan Africa, in Latin America, that experience a string of authoritarian rules, strife, and the question has often been raised or question has often been raised “if a new government emerges, a new state emerges, can that  state actually run out of its obligation, walk away, a bad debtor? You know that for me is very private perspective, from a very personal perspective, that will be very very difficult. You have to be a good debtor, you will no longer get infusion of new funds in the end. And that applies not just on a personal level but even on a state-to-state level. But the temptations are very real for a government that wants to survive for example. Governments rise and fall sometimes in the context of deep economic crisis. And this is what happened to Greece as you know. In an effort to implement certain austerity measures, the first government that had handled it did not survive, a new government have to rise. We have other examples in other parts of the world. So this is what I’d like to begin with.

As a very young lawyer after the bar exam in 1984, I told myself there is something I’d like to really study when I go out there do graduate course. And I said “I want to make sense of what the activists at that time during the Marcos era were saying ‘Down with IMF, down with World Bank, down with WTO, ITO at that time. And I said you know as a lawyer if I want to be engaged in a very fruitful discussion on this matter, I really will feel inadequate unless I really study very well the consequences and the roots of this. I am not an economist by background but the nature of the issue that I had to deal with at that time was very much economic based in United States and for a lawyer, of course, getting into this ground, is like going into the lion’s den, it’s like mathematics. That’s why most of the lawyers they say would want to go to the law school to avoid one plus one. But I said no, I think I will get up anyway. I have the benefit of an economist that, adviser at the time public international law adviser also and a whole set of hopefully disciplinary exposure. And that is the right thing I got my own orientation that when you study law, you just cannot be confined with the technical rules of law. You have to look at the foundation of the law, you have to look at the rationale behind it. And that is where law becomes more meaningful, that is where law actually makes sense in the lives of people, in the lives of the states. Because law is an evolving __________. With that, I now would like to proceed with the introduction of the history of insolvency.

If one were to look at the history of international relations, there are at least very interesting models that we can look at on how the international community have dealt with insolvencies in the past. Very often, people ask can this state really govern? Can a state in a very theoretical and legal sense go broke? We say no, because a state has all the grand powers, it has a power to task, it has to power to generate revenue. However the impact of the citizens is what will make a government think about using such kind of power. For that power has to be reasonably applied. And therefore can a state really go broke? Well, we say yes in the end. That there are countries who are unable to service, for example, its debts, its indeed balance of payment, deficit, then that’s perhaps the situation which we call “getting broke” when you are no longer able to pay your financial obligations.

There was a time in the international communities’ history that the use of force was in fact use to exact contractual debts. Some of the bigger countries at that time had to send their forces. The U.S. would send their marines to actually exact contractual debts of some of the smaller Latin American countries. But the Hague’s Conferences at the turn of the 19th to the 20th Century, banned the use of force to exact contractual debts. And even the United Nations charter already bans the use of force for aggressive purposes. So that was the precise, what was the model during the post-World War I and before World War II. Well, we have Bondholders at that time. And what they did was to negotiate. There were negotiations that happened between the debtor and the private Bondholders at that time. Then of course perhaps the closest you can find that will be equated with a model that will develop after the second World War under the auspices of the International Monetary Fund.

We also have another template that dealt with non-contractual debts but more oblique, obligation like the German model when it had to pay certain debts after the first World War, and it was based on a Treaty. So there was a multilateral arrangement determined to pay its debts through a multilateral model. That again will ring a bell looking at the post World War II situation where a group of creditors for the Paris Club group of creditors would deal on a multilateral level.

And then came the post World War II, and this were ____________ as I said a little more time looking at how the International Monetary Fund had put together a framework to deal with sovereign debtors  particularly developing country borrowers.

The Asian Financial Crisis again is of interest simply because it deal what we call tiger economies this time. Tiger economies in Asia would count Malaysia, you have Thailand, you also have Philippines and Korea, has been one of the fast developing economies in East Asia. Again, we will see how the nations reacted on the let’s say participation in having to settle their properties. And finally, we will end with Europe where I think the latest model we will find in sovereign debt crisis had adapted in a way what the IMF began after the Second World War. But of course with much caution because Europe is a continent that is very proud of its tradition of its independence, as an integrated community. And it will have a bearing on how a model in the Eurozone will actually develop.

So this is what I just want to wrap-up – the first and in the pre-19th Century. These are at least the points that I’d like to deal you with. There is a term for a re-adjustment plan. A debtor state is given an opportunity rather than walking out of its obligation to readjust.

Diplomatic protection, of course, is always made available to private Bondholders. In international law the debts, for example, or obligations of a private citizen for a theoretical entity that actually are owing from the let’s say the state party would actually resort to what we call diplomatic protection. So if you’re a bank, you would want your country to raise that up as an issue with a government that owes you certain obligations. But that is because on an international claim, you are talking of an arrangement that does not have the status of a treaty between two parties.  And therefore, your resort would probably be less of an international remedy. That’s why you will have to resort to diplomatic protection.

As I mentioned, the closest I will find for there might be a so called legal consequence for state for non-compliance with a multilateral financial obligation is to a Treaty Model. Because if you ask the state to sign this settlement in the context of a Treaty, then you will have consequences pursuant to Treaty Law. And if the party fails to comply with that then you can bring that  party before the International Tribunal. But this was because during that time, before the Second World War, we did not have, let’s say an integrated world economy where you have institutions like WTO, or World Bank, or IMF, that will actually offer opportunities for dispute settlements before going to an International Tribunal.

Let me move more particularly into the International Monetary Fund including the other economic institutions. Just before the end of the second World War, there were two major countries of course dealing a meeting in Bretonwoods in New Hampshire, that is the United States and England at that time. They led the allied countries to deliberate on how to reconstruct the World Economy after the Second World War. That was a major concern for the two countries. And we will see where the United States on one hand and Britain on the other hand differed on approaches when it came for example, to the use of the International Monetary Fund resources in dealing with deep financial crisis of their members.

Just by background or in deference to “Tañada versus Angara”, it’s good to know that one of the three grand institutions at that time that was intended to govern trade, in the states that’s the exchange of goods and services by providing a set of rules was the International Trade Organization. That did not materialize as we know. The Agreement that govern it, was the general Agreement in Paris and Trade and because at one time the United States did not also favor an ITO at that time. What happened was Secretariat  remain to be the governing body for purposes of implementing the general Agreement on Paris and Trade. Later on in the Machist Treaty in the ‘90s, the WTO would enter into Court and you now have a world trade body that has a dispute settlement mechanism.

The other institution that was created during the Second World was the International Bank for Reconstruction and Development (IBRD).The IBRD at that time was really intended to provide assistance to countries rising out of the war and they would need infrastructure development. So World Bank was really conceived as a development institution that will deal in infrastructure, deal with damaged bridges. But World Bank has evolved instead. It even went into matters like the restructure of adjustment loans, and also governance issues has evolved to that time on.  But the International Monetary Fund, in a way, remains stable, and focused in its mandate. It is one that was ________  to govern courts, deregulation of exchange, and money for example would have been the basis of the mandate. It is like a central bank of all central bank this day. That became the function of International Monetary Fund. But when we talk about trade and money, there are two sides of the same coin. Whatever you do on the trade side, will affect the monetary side and vice-versa. So it is very important for WTO and International Monetary Fund, including the World Bank, to coordinate more or less if you want to have a sound global economy. Now the whole intention of the so called Bretonwoods Institutions was really to provide a set of rules this time that will govern the behavior of states in regards to money and trade. Why? Because they saw that before the Second World War the excesses of nation states without the regulatory framework on an international _________________ that even cause the war. And they said you provide a venue for competition for countries around the world to develop and eventually you would have countries that will be stable and eventually conflict hopefully will not thrive. And in a way if you look at that in the context of financial setting that exactly is the direction that you would want in a country.

When talking about frameworks, what is the economic framework here? That I think is a given at that time. It’s a free-market based economy. But that will become more and more flexible as the national economies developed.  There are certain specifities on a ground level that we have to adapt to a purely free-market based set of principles. So you now have paradigms or models that will talk about developments. How do you pursue development in a market-based situation that will also look at the impact in the most marginalized sectors of a society.

From an international law perspective, and a more legal in approach, we now have a set of rules, treaty-based rules in regard to exchange of goods and services or even your currencies. And so there are things that we just cannot do on a domestic level without having to take into account the impact on other states.

So this is I think one of the most interesting contributions from the point of view of international law and practice. And this is where I’d like to emphasize a little bit more. Now, just looking at the IMF mandate, you look at the paragraph under Article 1, it says and I quote “To facilitate the expansion and balance growth of international trade, and to contribute thereby to the promotion and maintenance of high levels of employment and real income and to the development of the productive resources of all members as primary objectives of economic policy.” That is a provision and I’d like to focus on two very relevant mandates of the IMF that had something to do with the financial obligations of states. There are two provisions I’d like to give emphasis to:  that’s the freedom for payments and external debt service and the use of the Fund’s resources or what we call balance of payments financing in the context of the IMF.

Just a little explanation on a member’s obligation in the IMF. When you become a member of the IMF, you actually contribute a certain sum of money. And, in principle, I may contribute One Peso. Later on, if I would need what we might call balance of payments financing, I maybe allowed to freely draw on an equivalent amounts that I have contributed to the Funds. And, to that extent, a Peso to a Peso there will be no conditions for it. But oftentimes countries would need more than what they have initially contributed and that is where what we call conditionalities come in. And therefore you have to abide by that. I will explain that very technical arrangement later on.

In the case of the mandate of the IMF also, I’d like to mention this very important provision in Article 1 that says “It has the mandate to establish a multilateral system of payments in respect of current transactions between members and the elimination of foreign exchange restrictions which hamper the growth of world trade. Again, if you look at the mandate of the IMF in light of WTO also, the principle is that the lesser government is in, or at least the less restrictions you have to allow the free exchange of goods and services, or in this case the free movements of payments across border, then the better for the world economy.

The other provision it says “To give confidence to members by making the Fund’s resources temporarily available to them under adequate safeguards, thus providing them with opportunity to correct maladjustments in their balance of payments without resorting to measures destructive of national or international prosperity.” Now, as I said it’s very tempting for a state that is experiencing economic crisis to adopt very popular, very popular policies but of course may be economically damaging in the end. So economists would understand this better of course. It hurts, it hurts to recover. There are bitter pills that you have to take on a short term but, hopefully with a long term gain for the economy. And so when you need that breathing space, you are given what we might call a “facility”. You are allowed access to IMF resources, and in very very basic Civil Law of Ireland, that’s a loan anyway, but it’s called a purchase of currency. It’s a very technical again procedure but it really gives a loan and you’re given that window to be able to use up the Funds for a certain period of time, hopefully, to be able to clear your balance of payments deficit within a certain period.

Freedom for Payments and External Debt Service. Now I’d like to follow through on that particular provision on current transactions because there is also a very important provision in Section 2(a), Article VIII of the amended provision of Articles of Agreement where it says “no member shall, without  the approval of the Fund, impose restrictions on the making of payments and transfers for current international transactions.”  And what does the phrase ‘current international transactions’ actually mean? Well, before I move to that I just want to mention that that may refer even your debts, your loans to, in the case of some of the most indebted countries before, to private commercial banks that was the phenomena at one time. So, you cannot impose some of these restrictions you must allow continuous payments.

Now in the case of the Philippines, I just want to flag a case to “Guingona v. Carague’, ‘Senator Guingona and Pimentel’ which challenged the Foreign Borrowing Act of the Philippines at that time which is a carry over from the Marcos administration. It dealt with the automatic debt service. As you know, in every government budget, every year, there is almost always a fraction of the budget that automatically goes to debt service. That has been there for a while and it is not there without any purpose. And it has a lot of bearing to the point of view of external debt service. But the challenge that was made of course on Guingona v. Carague were almost 2, 3-fold. Let me focus on one that said we cannot actually set aside money without a very specific appropriation intended for this. So you have to have some specific sum of money for a particular purpose. Now the automatic debt service according to them is undetermined. For each year, it is almost undetermined because it is not appearing there unless, and if you compute, of course the interest for that year, you will be able to determine. But, until such time, it automatically gets into the Budget.

What was the argument of Senator Guingona and Senator Pimentel? Very interesting, because they referred to another provision of the Constitution that says “highest budgetary priority must be given to education. So in the file, this is what they said. In the file, every year the biggest must be given to education. And so when you have a very high, let’s say percentage of debt service appropriated, that violates the principle of Constitution. Of interest is cap almost by the the Constitution of the Supreme Court. I think it was Justice Limcaoco? at that time where he says “as to whether or not the country should honor its international debt, more specially the enormous amount that has been incurred by the past administration, which appears to be the ultimate objective of the petition, is not an issue that is presented or proposed to be addressed by the Court. Indeed, it is more of a political decision of Congress and the Executive to determine in the exercise of their wisdom and sound discretion.”  This does not refer to the deference to the other government on this matter because they are most in tune with how the international community actually would react to a very radical unilateral decision that say government to just put a peg on debt service or just not pay. So in that sense they gave due respect to the decision of Congress in the Executive actually to allow the operation of the automatic debt service. After this case, there were attempts almost always from the Floor to actually veto the automatic debt service provision. And that has, almost always, not benn allowed.  It has always remain that time, and to a certain extent one may ask “What is the Philippine attitude then with regard to international financial obligation?”  I think there’s respect on the part of Philippine government and while there’s also great temptation to distinguish certain debts as they said, and for example the ___________Nuclear Power Plant that has been the subject of a lot of I think progressive thinking to just walk away from our obligation. In fact we have paid it almost full. In fact already, because we have fully paid. If one were to look back, however, did we behave in a manner that was consistent with the norm at that time to respect financial obligations.  I have not, in fact, tacled the issue of  odious debts because the odious debts in International Law had been actually applied in certain situations where countries did not want to pay obligations of previous governments or previous states. Because they did not _________ to the benefit of the citizens. I’m not tackling that in that perspective. Although there’s a World Bank study now that perhaps there might be situations that debts did not definitely _______ to the citizens because of an authoritarian government and corruption, for example, were actually be allowed to forgive those debts, under certain conditions. In the case of the Philippines, and I remember this very clearly, one of the announcements made by then President Cory Aquino before the U.S. Congress was respect the international financial obligations. It was, probably, from a point of view of the progressive groups at that time, something that she should not have said. But there are others who have said perhaps that was also a message that says we are going to honor financial obligations because we respect our commitments. It’s a very strong commitment to say that we are part of an international community and they know the expectation of the international community. There are still, of course, challenges at this point on how we will deal with those.

If you now look at the way the economies also coping, one time during the financial crisis, we are one of those that are very very much stable economy even during the Asian Financial Crisis. Then we do the right thing, for years. And I think it’s a message that successions of administrations have, to a certain extent, been reading quite well how the international community expects us to cope with crisis. So the term “current international transactions”, as I have mentioned, would perhaps pertain to all payments during the financial foreign trade or other current business including services, normal short term banking and credit facilities, payments due as interest on loans, and net income from other investments, payments of moderate amount for amortizations of loans, or depreciation of their investments, etc.

Let me move to balance of payments financing in relation to the doctrine of conditionality and the development of what I call, it’s a very contentious instrument called “stand-by arrangements”. When one would like to avail of the resources of a government, of the Fund, the International Monetary Fund because the government is in deep balance of payments deficit, you are allowed to enter into an arrangement that is called the stand-by arrangement. It may run for one year, two years, three years. The Philippines, I think, has been through a lot of SBAs. We keep on renewing SBAs simply because we continue to have need for an assistance for a long time. But now I think we’ve graduated from that. We don’t have an existing SBA anymore.  And that goes well for the economy of the government. If you are “off” the arrangement, that means you’ve been able to cope with your balance of payment problems. Now, what is interesting here is that tenor by which the International Monetary Fund would treat a stand-by arrangement. Now from basic International Law, if a government enters into an agreement with a state that from the point of the International Law would be a Treaty. If you enter into an arrangement with an inter-governmental organization, like the International Monetary Fund, what is theoretically the status of that Agreement? Would that have the flavor of an International Treaty? Now, there is decision of the Supreme Court for recently in the  “Bayan v. Romulo that says that “when the parties enter into agreements like to states, it’s also up to the parties to characterize the nature of the agreement on whether or not they would want it to go through concurrence by the Senate, for example as in the United States and the Philippines. So there are certain agreements that may not necessarily have the structure of a treaty but perhaps executive agreements, lesser of a Treaty, but still would have international legal consequence for non compliance. In the case of the IMF, they say stand-by arrangements are not international agreements that comes from that. We will try to understand why does the IMF want this characterized as a non-international agreement? The Fund also says “the Fund will pay due regard to the domestic, social, and political objectives, the economic policies and the circumstances of the members”. The reason for that is for some time IMF has been criticized saying that the economic policies or prescriptions that the International Monetary Fund missions would normally recommend, within a short term, even affect human rights and even social protection measures of a government. And, therefore, in order to avoid that implication to the IMF on having to impose certain measures that will undermine sovereignty or even human rights principles, the Fund makes it a point  to say that it will pay due regard to the specific situation of the country. And, therefore, as much as possible, the design of an economic policy for purposes of addressing balance of payments issues will be specific by country. But, again, most of the literature will show that it appears that for several countries in the past, especially in the ‘70s and the ‘80s, there has been a consistent “straight jacket”, “one size”, “fits for all” approach or attitude in the part of IMF. And there will be some flexibility that will happen later on because of the reactions of some countries anyway. But this is very clear from the document of the IMF that it will pay due regard to the domestic and social and political objectives of a country.

Now let me go closer to home. This is where I’d like to look at stand-by arrangement in the context of the Constitutions of Ireland and the Philippines. You know Ireland very recently also had deep financial problems and they had to go through an arrangement with the IMF. And I got into a very good discourse or literature that actually tackles the predicament of Ireland. When you approach the International Monetary Fund for balance of payments financing, there are two stages to this. The first is the government will write a letter of intent. They will say we are in need of your financing for the following purpose, explain. And then the IMF now Governing Board will respond to you and say “Yes, we will allow you for an arrangement of one, two or three years depending on the need of the country.” That’s the first stage to it. Now for you to be able to give the money, you must have a set of economic policies in place. So you come and say “this is my plan on how the economy will be addressed for the next one to three years”. And only after you’ve done that, that there will be approval on the part of the Fund. Now when you have to get the money, that is when the transaction begins. The transaction actually is not a lump sum. It will not be given to you in a lump sum. It will be given in ‘tranches’. We call it a ‘tranche’. For every tranche, on a periodic basis, there are monitoring tools for the IMF to actually look at the compliance per stage. So, could you imagine that, a state is submitting itself to an international organization to be monitored when it comes to compliance with economic policies. Where is the difficulty here? What if this state is unable to comply with the economic policies? Then the drawdowns, the tranches will be stopped for some reason. So we’ll almost always have periodic monitoring for that, because that is the economic discipline required as a country.

Now in the case of Ireland, the second set of transactions where you now have to draw, you have to purchase from the Fund, let’s say currencies that will now be the subject of a constitutional issue. As far as stand-by arrangement is concerned, I think Ireland would not consider it consistent with, let’s say, the Fund’s position that stand-by arrangement is not an international agreement. Therefore, it does not have to go through what we call concurrence. But what one observer had said that “Perhaps in Article 29.5.2 of the Irish Constitution, the second level of transactions is really what will be applicable because the Constitution in Ireland says “The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dail Eireann.” I think this is their lower house but the principal chamber. So it has the equivalent of our concurrence by a senate.

Now there was an argument explained by one writer that says “As long as the Irish State did not assume any legal obligations whatsoever, there was no international agreement put in place, and therefore Article 29.5.2 was not applicable. But, at the next stage, and that is when you now begin to transact as for your tranches or drawdowns the Government here would actually be entering into actual purchase transactions and therefore it would be assuming certain obligations on behalf of the State, which will turn out to be in need of prior approval.” Now how does this ring a bell when it comes to our own Constitution? If for example the Philippine Government itself would now have to get into a stand-by arrangement, I think we have consistently practiced almost the same way that the Irish Government had done in a way. In the past, I cannot recall of any stand-by arrangement that had run through the concurrence of the Senate. Never have I seen such. So that confirms in a way our admission that the Fund considers it as not an international agreement. However, under Article 7 Section 20, the provision before Article 7 Section 21 on Treaty concurrence, it says that “the President may enter into loans or guaranty international financial obligations in that regard only with the concurrence of the Monetary Board. But my dilemma there has always been, if the President, on behalf of the Philippine Government and the State, enters into a Loan Agreement with another State or, in this case, with International Monetary Fund, from the point of view of the Vienna Convention of the Law of Treaties, and under the definition of what a Treaty constitutes there, is there a written agreement entered into between two States governed by International Law. It fits Vienna Convention of the Law of Treaties. And, therefore, I would think from the point of view of International Law, that is an International Agreement. But the procedure domestically differs and we have made a distinction between loans on one hand and treaties in other international agreements on the other hand. So there are two provisions. But from the point of view of International Law, I think that will have anyway an International Agreement status. But domestically the process is different. Much the same way here, even if the Irish Constitution says that “It is not an International Agreement but you interpret the second set of transactions when you begin to have to purchase or actually borrow specific tranches that will create a binding legal obligation. But is it a treaty or not? Perhaps from their point of view it is not a treaty domestically but it will have an international treaty status as far as the Vienna Convention on the Law of Treaty is concerned.

So here is a summary of what I have so far been discussing for you. And if you look at the framework here, this was applied some time in the 1980s and 1970s when you had many sub-Saharan African countries, we also have Latin American countries into this framework.

Now let me introduce a number of characters. One is the Paris Club Group of Creditors and the London Club Group of Creditors. We go to the Paris Club Group of Creditors which is really composed of your creditor governments. Most governments, I remember, is almost given concessional loans given interest rates. It is almost like an aid but the commercial facts that were exposed many developing country borrowers especially the 70s at the height of the quadrupling of oil prices, decided to bond together just like what we have seen in the private Bondholders in the early stages of sovereign debt negotiation for the Second World War. They bonded together and they called themselves London Club. Now there are two distinct agreements here. On one hand is the Paris Club Scheduling Agreement where you just basically schedule. That’s all that they do. Anyway it does not entail much interest, it’s almost zero interest. But when you talk about the private commercial banks, they are most exposed and they have depositors in their own countries and therefore when you begin to write off debts, that’s a no-no from the marketing industry. So how do you prevent that situation? You look at the clubs. The clubs only are among the creditors, they are not among the debtors. And they said, “You know if at one time Argentina, Brazil, Mexico come together, and form a debtors club, you could imagine the impact on the world economy”. But this is how they deal with the debtor. So the debtor goes to Paris at a meeting where they tell the Paris Club group of creditors for purposes of rescheduling, this is what we need to do. But before they can even do that or before they can even restructure their debts with the private group of creditors, you have to have already your IMF stand-by arrangement, because that is the zeal of good housekeeping. That this country has already talked to the IMF, presented a set of economic policies that eventually will translate to legislation. And that’s the only time we will have confidence, that you are going to recover within a certain period of time.

Now where is the difficulty here? Legislation may mean increases in taxes. It may mean liberalization, opening your economy, it may also mean budget cuts on certain factors that you would not have a quick return on your investment. So this is where the difficulty begins. And this is where national governments will now have to determine “how will our citizens cope with this?”  If our Constitution talks about social justice, fundamental rights of our people, protection to the most vulnerable sectors of society, and we have such Constitutional mandate, how do we now use this as a set of standards now to look at economic policies that will have a bearing, on a short time, painful but there have to be a long term gain. Now that’s the most difficult for a government. And if the government is not popular enough, it might fall overnight.  And there’s a literature by a group of German sociologists that I have seen one time, really very very interesting to study the so called Vicious Tangled Indebtedness where you might, at one time, have a communist government, or you might have a junta depending on the capacity of a government to be able to implement what we call austerity measures. So there is a very fragile, very fragile situation in the implementation of such adjustment policies and this is where ______ come in. There are stories that in sub-Saharan Africa, some of the poorest countries then, IMF missions actually become Secretaries of Finance or even Central Bank governors simply because the country does not have the capacity to even run those economies. That’s, of course, if you would look at it from the point of view of intervention, that’s a fraud, but what can you do if you want to save the economy? So that has been the other side.

So this is the model, this is the model that has been going on for a long time. I’ll just run through some of the basic principles, just like in ordinary contract, debts. You have to have respect for the rights of creditors. So even among the creditors, you have to be assured  that it will be paid. So they almost always want good behavior on the part of the government. And that means again referring to a program that the IMF already has seen with the debtor country. You also take into account the legitimate interest of creditors, you have to treat them equally. So among the Paris Club Group of Creditors, you also have to treat them almost equally.

For debts that are actually owed to private creditors, there is entirely different sets of norms. And this is where I’d like to bring you with. Well, again, I just want to emphasize that equality and non-discrimination among all creditors. That is a standard set. And as far as private non- officially guaranteed debt, you have to negotiate it with the private creditors on a different plane, and that is your London Club. That is how they negotiate it.  So that’s the UNCTAD that has also reached the level in 78 to a more multilateral framework. So it is recognized as a norm and again there is need on the other hand to protect the interest of both the debtors and creditors. You do not want also your debtor to actually close shop. So they have to take into account the reasonableness of payment scheme.

Now let me go the private commercial banks. It is very interesting because this is where they apply very strict, if you’re in the private practice, this is really drawn from typical loan, commercial loan agreements, where you have a syndicated loan. But what is interesting is that now that type of loan agreement takes into account IMF. They now say you still have to go to the IMF because that’s the only way we can have confidence that if we restructure your debt, infuse new funds to you, then you will be able to recover. Otherwise we will not throw good money again to you. So that’s why they require that specific provision in a syndicated loan agreement that you have to have stabilization obviously already in place before you’re given restructure. There are conditions precedents before you do anything, you have to do certain things one of which is IMF stabilization program. So you have to be in good standing with the IMF. If you are not in good standing with the IMF, you have not been observing your economic policies, then we will cut, events of default. What is “Events of Defaut”? If you are unable to maintain your good standing, that can trigger an event of default in a restructuring agreement.

And this is Venezuela. This is actually the closure of my initial research way back in 1989 when I was wrapping up with my research at that time, the bubble burst for Venezuela. Venezuela is one of the more respectable Latin American countries at that time. It had oil, of course unlike the other countries there. But in 1989, Venezuela hit a snag and they had to resort to IMF assistance. So the President sent an economic mission to the IMF in New York for a meeting. And the IMF gave almost the typical prescriptions, short-term austerity measures that needed to be immediately implemented. The Mission said, the Venezuelan Team said, “this will be very difficult for the country”. But the IMF said, “but you have to do it”. They went back to Venezuela and in three days there were riots in six major cities in Venezuela leading to about a hundred deaths. One, because there was a drastic cut on subsidies, subsidies usually will cover those that the consumers are most intended on at that time – energy, food for example. In other parts at Middle East there were subsidies on bread that had to be cut for a short term that led to actual protest. So when they went back to the IMF, then the IMF began to realize there might be need to reevaluate. And this is where a credit also should be given to the Institution because, while it is very difficult to apply policies that may differ from the traditional approaches, it has become more open to new framework. So, sometime in the 90s, there was a Treaty Plan. Secretary of State Brady of the United States proposed certain measures that will allow some countries to postpone payments, so no interest because as of the time that negotiations were going on, you are not allowed even to postpone payments on either interest or principals. But then they began to relax that. But the more telling was, of course, the case of Highly Indebted Poor Countries. It has become a reality that many countries can no longer service their debts. They cannot even pay their principals anymore and therefore there was a realization from the point of view of international community that perhaps for Highly Indebted Poor Countries, they may just have to write-off their debts, forgive them. And that happened finally. And this is where, I think, where the IMF has, to a certain extent, been convinced. Fortunately we are not in the list. That means we are not highly indebted country and not poor in that sense, because in a way our economy had been able to cope with this.  So that became possible in the HIPC Initiative. What did the countries do for they had some savings. They channeled it to health, education and other development purpose. And that is where they were given much breathing space.

Now, let me go to the Asian Financial Crisis. The Asian Financial Crisis was not a typical balance of payments problem, according to the IMF, than the other economies around the world. They say you look at the situation. While there may have been allegations, for example, of corruption, or internal mismanagement, that is not really in the class of developing county borrowers’ problems in the 70s and the 80s. Besides, you are looking at East Asia, where the action is, economically, where you have some of the most robust and fast developing economies – Korea, Malaysia, Philippines was cited, of course and Thailand. And so, when this happened, there were some resistance on the part of Malaysia, Thailand and the Philippines to resort to IMF at that time. It was only Korea that went through a very very rigid stand-by arrangement and this is where, I think, IMF began to defer in approaching problems of some of the economies in Asia. Because now it is not the typical IMF balance of payments financing issue. What they did was to cover even trade liberalization more expansively, privatization issues, foreign investment, pension reforms, public sector austerity measures. These are not the normal structure of adjustment loans program. So it combined both structural and corporate and good governance, which is very interesting from the point of view of financial law.

Now comes the last stage, the European Debt Crisis – Greece, Portugal, Ireland, Italy and Spain. Could you have imagined that? We’re back to frame World War I situation. We started off with Europe, we now end again with Europe. And, in fact, our Central Bank Governor offer to join other developing countries to share a certain amount of their reserves, in fact, to extend to a bail-out package for European debtors. When I heard that, I said “what an act”, hard act to follow now. There were those who criticized “Bakit naman nagmamayabang tayo”. But from the point of view of good global citizenship, I think it was a good gesture. It was a very good gesture on our part. When, at one time, we were in dire need, tumulong sila. Why not. And these are some of the best developing partners also we’ve had in the past. Then there’s Spain, of course.  Sentimentally still, very much attached to us as a people. But Greece, Portugal, Ireland, Italy and Spain. Now this was interesting because there was a government initially that implemented the austerity measures but actually did not sustain the capacity and fell, and you had a new government.

What is of interest now is the development of two mechanisms in Europe. The Fund called Financial Stability Facility and the other one is the Financial Stabilization Mechanism. Now this is actually in the model from the IMF standard arrangement. Why did they come up with this? Because there was no framework in place for them. It shook the heads of the Europeans to grapple for a mechanism. And so within their own treaty-based rules, they try to find a way “how do we justify this?”  “How do we justify these mechanisms?”  But first, by way of distinction, the first facility which was initially implemented, the EFSF was actually funded by Euroland members. In the other stabilization mechanism, subsequent to that, you now have the participation of IMF. So IMF came in. Because IMF is really not most welcome in Europe.They don’t want that because you have a very proud, integrated economy and says “what is IMF going to do here?” We have another layer anyway of governance in Europe. And because of the experience with developing country borrowers, they said “I want to be given the one size fits all remedy for economic change?” It’s the second one that will now become permanent. So you will now have a mechanism in place. This is perhaps the equivalent of a standard stand-by arrangement in the European setting.

So that’s what I said, it’s the stand-by arrangement with the following features. So what’s the procedure, a member experiencing severe financial disturbance will prove that it is in need of the Fund, that the disturbance is beyond its control. Next, is that a member could not by itself raise money. Next is a submission of an economic and financial adjustment program, sounds like a stand-by arrangement, and finally you now have more close monitoring by key institutions in EU such as the Court of Auditors and the European Anti-Fraud Office. Why did they have that in mind? Because they realized these countries that got into debt problem particularly Greece, Portugal and Ireland were what we called peripheral countries. Peripheral because when they were allowed to enter the European Union, their economies were practically not in the same plans as Germany and the rest of Europe. But they were allowed nonetheless by Germany hoping that they will be competitive enough to catch up. But actually when you enter a place like for one time you were perhaps in one part of the metropolis and then you go to Forbes Park, then you begin to be tempted to live the way those people live. Right? Forbes na eh, I must have a Mercedes Benz, when before you only have Kia. Sorry ha. Greece, Portugal, Ireland – the peripheral countries at that time. But you know particularly Spain, they are the most stabilized ones they were also hard headed. And thanks to the United States, because that’s what really triggered it in part, aside from the peripheral situation that they had at that time. But it was really triggered by the 2008 flood in the United States.

Now this is again from a legal perspective of interest and I found in one of the literatures recently. There is a justification that they had to do. So far what we have been discussing since the first hour is that there was no clear mechanism in place internationally. Because before, there were no international institutions before the second World War like IMF, World Bank, or WTO. But from the Second World War, after that we have a more distinct set of rules. But still the way they dealt with it was on adhoc basis, simply because you have to respect the sovereignty of states nonetheless. They have to consent to certain procedures. But now in the European setting, there is a provision in the Treaty of the European Union Article 122 paragraph 2 which says “where a Member-State is in difficulties or is seriously threatened by natural disasters or exceptional circumstances beyond its control, the Council, on a proposal from the Commission, may grant, under certain conditions, Union financial assistance to Member-State concerned”.

The “exceptional circumstances” test in the provision has been interpreted to cover and I quote “serious deterioration in the international economic environment.” What about the peripheral member-States where there has been, according to one set of studies about Greece.  Greece actually concealed certain facts to the Union which actually caused or aggravated their economic situation. That was mismanagement, pure and simple. There was concealment. But if they contributed to that, would that have been exceptional circumstance.  It looks like under the European Union practice now applying now to peripheral countries, they would now consider that also as an exceptional circumstance. So the inducement of the crisis from the United States down to the peripheral countries would now be considered as one of those. So this is interesting development today in Europe. And so far in the region we don’t have it in Asia. We will still have to rely on the IMF stand-by arrangements right now. But this is for me the latest development on the sovereign debt negotiation.

Sorry to have exceeded few minutes. I just want to make the observation that as far as sovereign debt negotiations are concerned, we have seen remarkable changes from the time the IMF was constituted, to a certain extent, it had become more sensitive to what happened to developing country borrowers and now with the plight of what we call peripheral countries in Europe. The second is that you have new classes of debtor states. We have developed states now – the ‘Forbes” type of debtors.

And finally, austerity measures have now become transparent. They resort to parliament first before you even implement their economic policies. It has now become sort of the standard, whereas before it was from top to bottom. Today what they do is, in order that the economic policies should be accepted by the people, you have to have more transparency because the people have a stake into making a decision that will affect their lives. So there is no more secrecy in so far as transactions are concerned.  And finally, there is a lot of literature now that says “social protection and economic human rights must be given precedence here”. We cannot ignore the fact that children will be deprived of access to milk. For example, basic services, basic needs of people will now have to become standard norms to deal with when you now have to implement economic policies. And there are standards like universal human rights principles, you have the economic social cultural rights and even civil, political and economic rights that we may actually have to balance. We cannot sacrifice governance on one hand for the sake of instilling austerity measures. We must respect fundamental rights on one hand and also respect at the same time the right of the state to survive by implementing reasonable economic policies, but in the end with respect for fundamental human rights.  That’s right, and thank you very much.

Emcee:  Thank you very much Atty. Candelaria for that very informative lecture. Speaking of standards, you have definitely set a high standard for the other deans of the other law schools, so they _________ in their own public lectures. So, students, now is your chance to put the Dean on recitation. So the floor is now open for questions. Please feel free to ask your questions.

Dean Candelaria.  Actually I brought the classcards. You better volunteer, if you want volunteer recitation.

Q & A:

Student A. Good morning Ladies and Gentlemen. I’m __________________.

So Dean, I remember the case of the WTO case Justice. In that case a significant observation by the Court which I think saved the case is really the 5-year, I think 20-year leeway given by the WTO to the Philippines. Example, Justice, if for example we prove to the WTO that we can’t still comply, given the 5-year or the 20-year leeway, can we say that we can still implement the provision of the WTO in that regard?

Dean Candelaria.  I think you have just put the ponente to a recitation.

CJ Panganiban. I think it is really difficult to be in Ateneo. I am only from a poor man’s University you know, although raised in standard by the present dean who come from the best law school in Rockwell. But I will answer that later on when my turn comes.

Dean Candelaria. I think we would also have to look at as far as the economic institutions are concerned. They have what we call special legal origins. That’s a specialist. Before even resort to a remedy outside the Articles of Agreement or outside the WTO, let’s say Charter, you actually have to look at the mechanisms within. In the case of the IMF, non-compliance with economic policies will allow you to resort to consultations. Because they don’t want you to do unilateral actions. So they give you that opportunity. It’s like an exhaustion of domestic remedies, exhaust the remedies within the Institution before the Institution can even accuse you of having violated the international obligation. Because it will not vote well. The intention of economic institution is really to allow you to be assisted. That’s why technical assistance is very important. So I would not worry. I mean that is normally the concern of some of the person who says “pipirma na naman tayo sa isang agreement that will submit us ……”. But that is part of global citizenship in the end. You want to be monitored, you want to be transparent about what is happening. At the same time you would have the reciprocal obligation and right to seek assistance, then why not? And that should not lead to a situation where there is state responsibility in a technical sense under the Articles and State Responsibility. Thank you.

Yes, Mr. Vicente.

Student B (Mr. Vicente). Sir, from a crude law students understanding of basic economics and I hope Mr. Sobrepeña will not criticize me as ________________.

I would like to know, but based on my understanding, a country spends on deficit if it knows that it can collect the tax that we’ll be able to pay. Basically you’ll have to have a very conservative fiscal policy if you are determined to get into debt service. However, with my understanding of history is that, it began with the administration of Former President Marcos wherein a lot of spending was placed into unproductive ventures like the military and ambitious projects that were ridden with corruption. My question would be three here: Did you encounter in your study the impact of corruption on debt servicing of developing countries? And then why do debtors renegotiate or adjust, what were their considerations, and then what are the characteristics of states who have renegotiated, and finally there’s a fourth question here. Why did the Philippines basically you mentioned that we were able to finally free ourselves from a lot of IMF obligation. How did we come up with that? Did it start within the administration of Ramos, Arroyo or the Aquino administration? What were the factors that led to our so-called “finally I can free from my debt status”.

Dean Candelaria. Let me answer immediately the last one ______ teddytorial. I like Teddy Boy Locsin’s teddytorial on that. That what was exactly what he pointed out when he said “if you look at the gains of the current government now, it’s two years only, but if you look at the gains it was incremental, it started way back. And even from the point of view of I think economic continuity, even from the time of Marcos, Aquino, it’s incremental. And perhaps we have never really walked out of our obligations. Which was very difficult from the militant’s perspective. There will always attempt to say “let’s walk out of this and that”. But we have always honored our financial obligations. If you look at that, and the goal of the IMF, you feel confidence, and the International community has confidence in you. By any other special circumstances domestically, they’ll continue to come back and support you. But I think we have been a good debtor, you might say that. Others may not agree with it, what with the unilateral actions, but I think it has been a consistent policy decision on the part of Government to honor obligations. And we have been at the stage now where, even during the financial crisis, we have not been affected that much among the other countries in the region.  That’s the first.

The other one is, apat yan ano. What was the first one you wanted?

Student B.  That’s ok Sir, thank you, joke. The first Sir was basically what is the impact of corruption.

Dean Candelaria. Now corruption has always been an issue in many developing country borrowers. I think you just have to look at the history of South America, Sub-Saharan Africa, and some in Asia that’s right. But, as I said, the options have not been considered by some countries. Some countries would not want to pay but from the point of view again of international law, the odious debt is perhaps what comes closest to that principle even if it did not benefit. But my reading, at least from the studies that there has been a consistency not to undertake  unilateral action. Most states have at least grant and this leads to the second question on “what’s in store for the creditors to go through renegotiations?” Well, again, you will see whether you like the banks or not, it has been in their interest for the debtor to recover. Everyone wants a member, a member of the community to recover, right? And need assistance. And to do that, you extend, you give them leeway. That’s the interest for them. And if they are able to recover, these debtors will be able to repay, then they could be part of the economy either domestically or globally in a more progressive way. That’s the whole purpose, confidence. And the third one?

Student B. Sir what are the characteristics of the states to renegotiate? But more precisely, Sir, what kind of states frequently negotiate?

Dean Candelaria.  Let me answer it in a different way. There have been countries who have been under IMF “tutelage” for a long time. Whether you agree with me or not, there were countries like Brazil, where is Brazil now, Mexico, we don’t have to go too far, Korea. First Korea, Koreans are here because the standard of living really is very high now in Korea which means they have reached a level of almost like a North American, European standard. And Korea has been, for a long time, actually resisting austerity measures in the past. You can see the Government in Korea are very difficult, very volatile and yet they have implemented austerity measures. And in the last financial crisis, they were the only ones that went through a stand-by arrangement – not Philippines, not Malaysia, not Thailand. In the case of Malaysia, it’s Mahatir. He just does not want intervention, he even imposed capital controls, which is a no, no. But they have a different approach. But Korea did that. And IMF cites Korea as, in fact, their success story now. Whether you agree with that or not, I think there is objective evidence that they’re here. One even married one of our lawyers. We lost her to a Korean and good guy, very good guy. Thank you.

Student B. Thank you Sir.

Dean Candelaria.  Yes Sir, Mr. Samy.

Student C (Mr. Samy). Sir, based from my readings from your presentation, one observation was the multilateral framework is a ________ as regards answering or responding to the individual needs of a country. So one of the trends nowadays is for countries to have bilateral treaties with each other for much faster transaction because there are less parties involved, less interests involved. So, Sir and there’s this principle that “a beggar cannot be chooser”. So, for example, I am a beggar, a borrower country who is in much need of an aid and you have this creditor country. How will you reconcile the minimum standards or civil political rights as regards to that principle a borrower or a beggar cannot be a chooser. Because most likely Sir from what I’ve read, the practice nowadays is that when a borrower tries to apply for it, there is this proforma treaty or proforma agreement in which this agreement can be based for subsequent agreement. So the borrower, in this case, has less leeway with regard to its negotiation. Sir, how do you reconcile that to the minimum standard for civil political rights?

Dean Candelaria. I’m trying to discern whether you’re pointing to the impact of agreements on the rights of citizens?

Student C.  Yes Sir.

Dean Candelaria.  Well, let me just try to distinguish your example. Because in bilateral agreements now or treaties, it happens mostly in investment treaties. ____________. But in terms of loans, it has been the framework so far, unless you deal with creditor governments. By that, that the Paris Club. But as you have seen, those countries to which a debtor owed almost to a group of government creditors, would deal with it in a culled way. That’s in the norm, simply because they wanted some assurance that you would go to a process like the stand-by arrangement to be assured that you will be able to repay. Now, on civil political rights, are you referring to the impact of these agreements to fundamental rights of citizens?

Student C.  Yes Sir.

Dean Candelaria. It really will affect more the economies. Because you’re talking about standards of living. On whether or not such loan agreements will affect the standard of living of countries, what I left out in my conclusion but it was in the paper I gave to Chief Justice Panganiban, was the difference between the tolerance on pain and suffering between those Greek, Irish, Italians or Spanish with the developing country borrower citizens. I think most of the developing country borrowers that have to deal with years and years of indebtedness and also economic privation and the tolerance is much higher compared to more countries here. So we now look at levels of economic standards. Pag nawalan ng isang kotse doon sa Europe, disaster. Dito, ni walang kotse iyong taong naghahanap ng sasakyan. He has to take the rise in gasoline, for example, cost of transportation. It really deals on non-legal concepts of ________. But on the level of commitments, I think, uniformity applies to human rights standard. What applies to European citizens also should apply to those in heavily indebted countries. It’s just that on the basis of the resources of __________ that’s when you have to have proportionate response because obviously the pie in Europe is still bigger compared to the pie in the developing country borrowers. But the bottomline is there are fundamental rights that will have to be respected whether you are rich debtor or in a rich country or let’s say a very poor developing country. So it should be the same I think in that sense. I don’t know if I was able to address your concern in that regard, but I think it refers more to the economic human rights in that regard. Thank you.

Ok, Sir.

Student D.  Sir, Good morning. This is more of a clarificatory question Sir regarding one of your conclusions. One of your conclusions was, IMF now had evolving standards in sovereignty renegotiations particularly you said that they are being now more sensitive to their debtor countries. I just want to ask how you arrived at that conclusion and how you reconciled that with the fact that they are now applying more conditionalities and the conditionalities have expanded in scope. How do they become more sensitive when the conditionalities have entered the range which they have not entered before. How does that give more leeway to debtor countries.

Dean Candelaria.  Ok. I think it is more or less a function of how the causes of indebtedness have evolved through the years also. Because now they have realized that some of the causes of indebtedness may actually be attributed to mismanagement and not your balance of payment deficit. So, they have to address that. That’s why they go into issues of governance. Now, that in a way I think is responsive to the conditions that most countries now are going through, in terms of I think what you might call adjustment. So you will have to see the history in order to realize that the IMF actually is responding to certain ground issues. Now, there are still macro economic policies that have to be undertaken but definitely will have to affect certain rights like workers’ rights. In Korea, the biggest reaction of the workers of course to renounce IMF austerity measures because there were layoffs. So that again, is a direct bearing on the lives of citizens but what the IMF I think, and other economist are saying is that there are certain short term measures, but hopefully on the long term when the country recovers, then you’ll be able to adjust the standard of living accordingly.  But we are definitely going to be hurt along the line. And that is where, I think, looking at the history of IMF involvement, they have been trying their best, they’ve been trying their best. Thank you.

Student E. Sir, about standby agreement, Sir. Is it like a contract to sell?

Dean Candelaria.  It is the other transaction. The arrangement is really one between the Fund and the Government to say “we will make a facility available for you for certain period of time. The actual drawdowns, when you now have, it’s like a credit line, when for the next quarter you will get $25 million, next $25 million. That’s specific transaction. And that is what makes it interesting in the analysis that says “in the second stage, that definitely is like an ordinary contract in the civil law. In fact the analysis was under civil law by that person from the Bank of Romania, it’s a civil law country, and they were trying to imagine, “does this not have the effect of bilateral contract already, so that’s the distinction made”. But in the arrangement, IMF says there should not be any contractual flavor given to them.

Student E. So Sir it will be trouble if it become a contract.

Dean Candelaria. From the point of view of Government and the IMF that would be basis to say there’s a breach of an international agreement that will allow the other party, like the IMF, to go to the ICJ. But you don’t want to have economic issues being settled by the ICJ. It’s much to say why the Supreme Court was deferred to the political branches of Government like the Executive when it comes to matters of the economy.

Student E.  Sir, because the way the law was ______ Sir. Contractual provisions will be avoided.

Dean Candelaria. You cannot impute a contractual flavor to SBA.

Student E. Ah, ok. But Sir it is not mandatory so it could happen.

Dean Candelaria.  No, from the point of view of the IMF, that’s their position.

Student E.  Ah, ok Sir. Just final question Sir. Do you agree that for example there are people saying that the Constitution should be amended to be more responsive to economic issues, economic developments in the global…..

Dean Candelaria. That’s a very contentious issue now. There’s a mind that says there are restrictions obviously when it comes to foreign partnership that would have encouraged if you had a more open, let’s say, ownership provisions. Personally, for me I think there’s enough in the Constitution now that will allow us to progress. If also we would do better housekeeping within the branches of Government. By itself, I still believe that the Constitution has its stance now, it would have to be maximized in its impact. Of course it’s a policy decision. If we say “do you want to go from primera, segunda, tercera,” then opening it up when it comes to ownership probably will change. But there are other repercussions also that you have to take into account. The impact on the other sectors of the Government and also on the part of the citizens. But for me I think we have to maximize the provisions of the Constitution now and there’s enough leeway for them.

Student E.  Thank you Sir.

Dean Candelaria. Yes, Professor Gatdula.

Professor Gatdula. Just a couple of comments. The first comment I actually want to say, the lecture actually dealing on sovereign debts and in fact for me one of the most critical issues particularly for developing countries, which I think they missed but not many people brought it up was the fact that when Strauss Kahn was actually removed from Office, there was a move for a developing country particularly _____________ which I think a lot of the Asian countries and the Philippines missed. There has been a tradition of having America for the WTO member, and the European, and in the end it was a European who replaced Strauss-Kahn, Christine Lagarde. I feel that next time there should be an election for the replacement for the IMF Head. I think there should be strong _______ an Asian, and hopefully Filipino. ___________Bobby Ocampo. What do you think?

The second comment I’d like to make is, and this also _______ here. The three heads of the economic groups, I don’t know if anybody actually noticed, Christine Lagarde, Pascal Lamy, Robert Zoellick, they’re all lawyers. So there’s a shift right now in the way that legal profession is actually running. There is a probability here that you may not have or at least have a legal profession that is actually part of the legal profession and ___________ more flexibility because there’s a need for profession concerned.

Third comment is one actually which is in response to your comment and this is again for the benefit of the students. Dean Candelaria is talking about the non-unilateral action taking _________ for sovereign debts, and he made a reasoning on the fact that well it is part of what being a good international citizen is about. And I think that ________ is actually personal profound philosophy in that one. To put it as inelegantly as I can, I frankly don’t care for being an international good citizen. I believe that if every action a state should take is that state should take for the sake of national interest and not from a point of view of caring or not whether the other countries would be happy about what they see. Having said that, the effect would probably be the same. I believe that coming from the perspective, it’s purely sovereign national interest, it will not ________ as a country to actually not answer for these lessons. Having said that, that’s it.  Thank you very much and Congratulations Dean Candelaria.

Dean Candelaria. I respect your opinion. I empathize with you when it comes to the China situation.

Ok. Thank you very much for your very decisive remarks.

 

1st Lecture series at ateneo (1)

Chief Justice Artemio V. Panganiban Professorial Chair on Liberty and Prosperity
First Public Lecture on Wednesday 19th of September 2012 at the Justitia Room, 4th Floor, Ateneo Law School.
Dean Sedfrey M. Candelaria as Lecturer.

Professorial Chairs Program Launched

The Foundation for Liberty and Prosperity formally launched the ten “Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity” on September 18, 2012 at the Metrobank Auditorium, Metrobank Plaza, Gil Puyat Avenue, Makati, with Chief Justice Maria Lourdes P. A. Sereno as guest of honor and speaker.

Seven of the ten recipients received their “Certificates of Entitlement” and “Plaques of Recognition” from Chief Justice Sereno, Chief Justice Artemio V. Panganiban, Dr. George S. K, Ty (Chairman of the Board of Trustees of the Metrobank Foundation which co-sponsored the project) and Mr. Jose Maria Lim (President, Metro Pacific Investments Corporation, the other co-sponsor).

The recipients are (alphabetically arranged) retired Supreme Court Justice Adolfo S. Azcuna (Chancellor of the Philippine Judicial Academy), Dean Andres D. Bautista (Far Eastern University Institute of Law), Dean Sedfrey M. Candelaria (Ateneo De Manila School of Law), Dean Danilo L. Concepcion (University of the Philippines College of Law), Dean Jose Manuel I. Diokno (De La Salle University College of Law), Dean Nilo T. Divina (University of Santo Tomas Faculty of Civil Law), and retired Supreme Court Justice Eduardo B. Nachura (Chairman, Arellano University Law Foundation).

Soon, three others will be chosen from the top law schools in Luzon, Visayas and Mindanao.

In her keynote address, Chief Justice Sereno said that, by sponsoring the professorial chair program, the FLP “aims to enhance the dialogue on the very complex relationship between an individual’s right to liberty and the concomitant value of prosperity under the rule of law.”

“The underlying pillar of our economic system must depend on the rule of law. When the courts decide on issues involving the allocation of resources, they basically assume the predictability of their outcome. At least this is in the sense that if a person buys an object through legal means, his or her ownership will be upheld by the law,” she added.

In his response on behalf of the recipients, Ateneo de Manila Law Dean Sedfrey M. Candelaria expressed “our hope that the lectures and activities in the subsequent months and years will create a ripple effect and promote a paradigm that will find its way to judicial service, continuing legal education, but more importantly, with the concomitant impact on the daily lives of our citizens.”

Chief Justice Panganiban, FLP Chair, introduced Chief Justice Sereno while former Cabinet Secretary (during the term of President Corazon Aquino) Aniceto M. Sobrepena welcomed the guests and explained the many educational projects of the Metrobank Foundation, which co-sponsored the project.

Three FLP Trustees, namely, Retired Chief Justice Hilario G. Davide Jr., Business Icon Washington Z. Sycip and Former Secretary of Education Edilberto C. de Jesus, formally launched this FLP Website to the delight of the audience.

The launch ceremonies were began with an invocation by Attorney Joel Emerson G. Gregorio, FLP Trustee and Corporate Secretary while Professor Maria Theresa P. Manalac, another FLP Trustee, delivered the Opening Remarks.

Libretto by Kristian Jeff Agustin, Overture and Music by Maestro Ryan Cayabyab

The Kilyawan Boys Choir provided two intermission numbers by singing “The Newsboy,” composed by maestro Ryan Cayabyab with lyrics by Kristian Jeff Agustin especially for the 75th birthday celebrations of Chief Justice Panganiban last December at the Meralco Theater, and “May Bukas Pa.”

FLP Executive Vice President and Asian Development Bank Consultant Evelyn T. Dumdum and FLP Trustee and Professional Regulations Commissioner Jennifer J. Manalili were the Masters of Ceremonies.

The Metrobank Foundation hosted snacks and drinks after the program.

Chief Justice Panganiban’s column in the Philippine Daily Inquirer on September 23, 2012, titled “Sereno’s four reform pillars” and the Inquirer’s front page report of the event on September 20, 2012, titled “CJ Sereno vows ‘judicial bliss’ with 18 years in office,” are reprinted here. The original speeches delivered during the launch, the bio-data of the seven recipients’ and a facsimile of their “Certificates of Entitlement” and “Plaque of Recognition” can be downloaded from this website.

 


Formal Launching Ceremonies for the Ten Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity in video, 18 September 2012

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