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.

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.

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.

 figure1_pats_alcantara_MALLL


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

Photo by Kristian Jeff Agustin

Liberty & Prosperity for the Peoples of the World

by Chief Justice ARTEMIO V. PANGANIBAN (Ret.)

 

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

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

 

Global Forum on Liberty and Prosperity

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

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

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

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

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

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

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

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

 

Safeguarding Liberty

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

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

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

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

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

 

Jurisprudence Upholding Liberty

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

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

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

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

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

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

 

Nurturing Prosperity

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

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

 

Mandate to Uphold Economic Rights

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

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

x x x                             x x x                           x x x

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

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

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

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

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

 

Global Efforts to Solve Economic Deprivation

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

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

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

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

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

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

 

Need for a Stable Judiciary

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

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

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

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

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

 

Liberty and Prosperity as a Philippine Judicial Policy

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

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

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

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

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

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

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

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

 

Search for a Model for Economic Development

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

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

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

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

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

 

Epilogue

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

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

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

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

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

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

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

 


[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, “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 barring officials from attending legislative inquiries.  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 expresión 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 actions 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 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 constitutional 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] 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.

[11]             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.”

[12]             Art. XII, Sec. 1.

[13]             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.”

[14] 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.”  He believes that money saved from debt relief can be spent, instead, on health and schools rather than interest payments.

[15] This sum will be given gradually, beginning in July 2006 and continuing every year for as long as one of the couple — Bill or Melinda — 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.

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

[18] 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.

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

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

[21]  G.R. No. 118295, May 2, 1997

[22]           La Bugal-B’laan Tribal Association vs. Ramos, G.R. 127882, December 1, 2004

[23]             2 S.C.R. 3, April 13, 1995.

[24] 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’sThe Elusive Quest for Growth, XL Journal of Economic Literature 907-918, September 2002.

[25] 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.

[26] Ian Bremmer, The J Curve: A New Way to Understand Why Nations Rise and Fall ( 2006). The framework is represented 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.

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

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

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

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

[31] The religious sector, too, has genuine concerns about the alleviation of poverty and the sharing of resources.  Thus, the Gospel reminds us 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.” (MK 10:17-30)