Keynote address delivered by Chief Justice Artemio V. Panganiban during the National Forum on “Liberty and Prosperity”, held on August 24-25, 2006, at the Manila Hotel.
I am extremely delighted to see all of you here today for this National Forum on Liberty and Prosperity. Over a month ago, on July 20, 2006, an academic gathering was convened at the San Beda College to mull over the scholastic foundations of the twin philosophy of “Liberty and Prosperity.” Today, we have invited the members of the judiciary as well as representatives of the bar, the legislative and the executive branches of government, the business community, the media, and civil society, to discuss how each of these sectors can contribute to the safeguarding of the liberty and the nurturing of the prosperity of the Filipino people.
Visions for the Judiciary and the Legal Profession
Upon assuming the chief justiceship of the Philippines on December 21, 2005, I immediately vowed to lead a judiciary characterized by four Ins: independence, integrity, industry and intelligence.
To accomplish this vision, I pledged to continue and strengthen the Supreme Court’s ongoing Action Program for Judicial Reform (APJR), with special focus on what I call the four ACID problems that corrode justice in our country: (1) limited access to justice by the poor; (2) corruption; (3) incompetence; and (4) delay in the delivery of quality judgments.
Likewise, I envisioned a revitalized legal profession. By that, I mean a legal profession that is responsible, dependable and morally upright; one that courageously upholds truth and justice above everything else; and from whose ranks shall emerge competent and ethical lawyers.
At the same time, I asked three things from all the 26,000 judicial officials and employees all over the country; dedication to duty, honesty in every way, and loyalty to the judiciary or DHL.
I have always been quick to point out, however, that all these visions and objectives are not ultimate ends in themselves, because they must lead to two loftier goals of safeguarding the liberty and nurturing the prosperity of our people.
Poverty Alleviation and Big Business
At the time I formally announced my vision and philosophy in December 2006 (and thereafter), world attention was captured by billionaire couple Billy and Melinda Gates’ extraordinary display of their commitment to promoting prosperity; more pointedly, to the cause of poverty alleviation and disease prevention. Through the Gates Foundation—the world’s biggest private charity with a $29 billion endowment at that time (it is much more now)—the couple spent the year 2005 giving more money away faster than anyone ever had to save 700,000 lives through vaccinations and public health care. For their philanthropic passion in promoting wellness and health, as well as in alleviating poverty and diseases, the Gateses (together with their co-worker, the famous rock star Bono) were named Time magazine’s “Persons of the Year” for 2005.
Since that time, herculean efforts to alleviate poverty have been on the upswing among the richest people in the world. Billionaire investment guru Warren Buffett is the latest to join the crusade with a mind-boggling $30 billion donation of blue-chip Berkshire Hathaway stocks to the Gates Foundation.
This sum (equivalent to over P1.5 trillion or about one-and-a-half times larger than the proposed national budget of our country for the year 2007) will be given gradually, beginning in July this year and continuing every year for as long as one of the couple—Bill, 50; or Melinda, 42—is active in the Gates Foundation. But each installment must be spent in the year it is given. For 2006, Buffett has given 602,500 Berkshire B shares valued at about $1.5 billion, which must be spent by the Gates Foundation within the year. [1]
Poverty Alleviation in the Philippines
In the Philippines, the pioneering spirit of the Philippine Business for Social Progress (PBSP), which has been channeling private wealth into efforts to reduce poverty, has also merited considerable following. Big business conglomerates have formed their own philanthropic foundations to pursue educational, livelihood, and other social causes designed to minimize poverty and empower the people to help themselves.
Worthy of special mention is the recent announcement of taipan John Gokongwei. He has given an endowment of P10.25 billion worth of shares, representing all his personal holdings in JG Summit Holdings—a stock market blue chip—to the Gokongwei Brothers Foundation. In turn, the Foundation immediately donated P50 million to the University of San Carlos. This P10.25 billion endowment—one of the largest, if not the largest, in Philippine history—was made to celebrate Mr. Gokongwei’s 80th birthday earlier this month.
Noteworthy also are philanthropic efforts in education, housing, medical and social services. Contributing to these efforts are conglomerates like Ayala, San Miguel, YGC, Metrobank, and PLDT; as well as those of taipans Lucio Tan, Henry Sy and Emilio Yap. Of course, who can overlook the popular media outreach foundations, like Bantay Bata of ABS-CBN and the Kapuso of GMA-7; as well as pro-poor programs of religious groups, like Catholic Charities and Pondo Pinoy. Not to be forgotten is Gawad Kalinga led by Antonio Meloto, who recently merited an award by the Ramon Magsaysay Foundation.
Justice and Economic Growth
What do these gargantuan philanthropic activities have to do with the judiciary? The answer is found in the recent refocusing of visions and missions of the world’s most important developmental institutions. The United Nations Development Program (UNDP), the World Bank (WB) and the Asian Development Bank (ADB) have announced that their goals of alleviating poverty and propelling 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.”
For this reason, UNDP is passionate about broadening the poor’s access to justice; the WB wants “an effective and efficient judicial system that protects citizens from the abuses of government and safeguards the rights of the poor”; [2] and the ADB desires “to enhance the effectiveness and the accountability of the judiciary.” [3]
In the face of these challenges to end poverty and disease by the world’s philanthropists and leading developmental agencies, what is our response? For our part in the judiciary, we respond by redirecting attention to the effort not only to safeguard freedom from fear, but also to nurture freedom from want.
These interlacing and interlocking paradigms of justice and development reinforce my twin beacons of Liberty and Prosperity which, by conscious reckoning, have actually been embedded in the decisions of our Supreme Court.
Liberty and Prosperity as Judicial Policy
Indeed, over the last ten years, I believe that Philippine jurisprudence is replete with examples showing this policy of dual focus. 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 come to the court highly suspect in their constitutional validity, should they restrict the fundamental rights of our people. Second, in cases involving prosperity and development issues, deference is accorded to the political branches of government; namely, the Presidency and Congress.
Liberty: Strict Scrutiny
Some very recent cases on civil and political freedoms highlight the need for strict scrutiny.
In ABS-CBN Broadcasting Corporation v. Commission on Elections, [4] the prohibition of election exit polls was challenged. In resolving to allow the holding of exit polls and the dissemination of their results through mass media, the Court declared that public opinion polls “constitute an essential part of the freedoms of speech and of the press.”
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 is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom.” [5] This new ruling recognizing public opinion polls as a species of the freedom of expression was echoed one year later in Social Weather Stations v. Comelec. [6]
The “[v]exatious, oppressive, unjustified and capricious delays in the arraignment” of the accused were condemned very recently in Lumanlaw v Peralta [7] as violations of the constitutional right to speedy trial and speedy case disposition. For almost two years, the accused was detained without undergoing arraignment, despite 14 attempts at the proceeding. This Decision stressed that the Court “safeguards liberty and will therefore always uphold the basic constitutional rights of the people, especially the weak and the marginalized.” For the transgression of his constitutional right to speedy trial, the accused was ordered freed and the criminal indictment against him dismissed.
Very recently, in April to May this year, the Court promulgated three landmark decisions. Senate v. Ermita [8] involved 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. In invalidating the major provisions of Executive Order No. 464, the Court — through the pen of Justice Conchita Carpio Morales — 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.
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.”
The second case, Bayan v. Ermita, [9] dealt with the right of the people to peaceful assembly for a redress of grievances. This ponencia, penned by Justice Adolfo S. Azcuna, stated as follows:
“x x x[T]his Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expresion and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that ‘in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and 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.’”
Lastly, David v. Arroyo [10] ruled on the rights of the people under a “state of national emergency.” Writing for the majority (11-3-1) in this case, Justice Angelina Sandoval-Gutierrez began her ponencia in this manner:
“All powers need some restraint; practical adjustments rather than rigid formula are necessary. Superior strength – the use of force – cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty.
“Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: ‘In cases involving involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak.’ Laws and actions that restrict fundamental rights come to the courts ‘with a heavy presumption against their constitucional validity.’”
In all these cases, the Supreme Court upheld the primacy of civil liberties over governmental actions.
Prosperity: Deference
On the other hand, cases over the last ten years, involving the merits or wisdom of economic policies, have adopted a deferential stance. In Tañada v. Angara, [11] the Court deferred to the wisdom of the Senate when it upheld that legislative body’s consent to the Philippine ratification of the World Trade Organization Agreement. To demonstrate this deference more vividly, I would like to quote portions of the Decision, as follows:
“It is not impossible to surmise that this Court, or at least some of its members, may even agree with petitioners that it is more advantageous to the national interest to strike down Senate Resolution No. 97 [which embodied the Upper House’s consent to the ratification of the WTO Treaty]. But that is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our own judicial power and duty. Ineludably, what the Senate did was a valid exercise of its authority. As to whether such exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between the elected policy makers and the people. 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 policy makers. x x x.”
This laissez-faire judicial policy on economic issues was reiterated in La Bugal-B’laan Tribal Association v. Ramos, [12] which affirmed the constitutionality of the Mining Law allowing 100-percent foreign investments in large-scale mining. Thus, the Court held thus:
“x x x. The Constitution should be read in broad, life-giving strokes. It should not be used to strangulate economic growth or to serve narrow, parochial interest. Rather, it should be construed to grant the President and Congress sufficient discretion and reasonable leeway to enable them to attract foreign investments and expertise, as well as to secure for our people and our posterity the blessings of prosperity and peace.”
La Bugal’s doctrinal pronouncements were very recently reiterated this year in Didipio Earth Savers Multi-Purpose Association v. Gozun, [13] written by Justice Minita Chico-Nazario.
This judicial no-interference rule on economic policy should not be taken to mean, though, that the courts will abdicate their duty to strike down (1) gravely abusive legislative or executive acts that clearly violate the Constitution, the laws, or settled jurisprudence; [14] or (2) those that have been issued with arbitrariness, whim, caprice, bias or personal hostility. [15]
Consistent with these two exceptions to the no-interference rule, contracts entered into by the government have been judicially nullified. The Supreme Court—and other courts—have been taken to task for rendering judgments perceived by business circles as “intrusive and disruptive.” But what the critics have conveniently overlooked is the fact that even the ways of the market and of merchants must adhere to society’s rules on fairness, equity and reasonability. It is the function of law and of the courts to put these fundamental convictions in legal form and to make them direct economics.
The question may then be asked. Are economic and business questions not to be reviewed by our courts for being political or non-justiciable? No, I do not have any intention of abandoning the doctrine of justiciability. I submit, though, that only on the clearest of grounds must judicial review result in a reversal of legislative or executive action in commercial and business matters. Consequently, any doubt must be resolved in favor of the political branches of government.
Although separation of powers is definitely also at work, it is more than separation of powers that supports my proposition. Insofar as rights guaranteeing civil and political liberties are phrased as executory by our Constitution, they are susceptible of direct application by the courts. But basically, economic provisions of the fundamental law are considerations of what are beneficial, advantageous, feasible and practicable; they are policy considerations best left to politicians and economic managers to implement.
Conclusion
Ladies and gentlemen, the next two days will provide you ample opportunity to identify ways of implementing, enhancing and strengthening the twin beacons of Liberty and Prosperity within your respective spheres of influence.
Thus, I urge you to contribute fully and meaningfully to the discussions, bearing in mind that the results of this conference will lay the groundwork for the forthcoming Global Conference on Liberty and Prosperity scheduled on October 18-20, 2006. This early, many Chief Justices, including those of France, Canada, the Russian Federation, Azerbaijan, Guatemela and Benin, to mention a few; presidents and representatives of international lawyers groups, like Señor Fernando Pombo, president of the International Bar Association, Armando Lasa Ferrer, secretary-general of the American Bar Association, and Raymond Wong, chairperson of the British Chinese Lawyers Association; and law deans, business leaders, and civil society advocates have already started to accept our invitation and to register for the forum. During that global gathering, we hope to spread the gospel of Liberty and Prosperity beyond our shores and unto the world.
May I close by thanking you in advance for the inputs and contributions you will make to refine, implement, strengthen and propagate the twin beacons of freedom and food, democracy and development, ethics and economics, integrity and investment—indeed, of Liberty and Prosperity for all of humankind.
Maraming salamat po!
__________
Keynote address delivered by Chief Justice Artemio V. Panganiban during the National Forum on “Liberty and Prosperity,” held on August 24-25, 2006, at the Manila Hotel.
[1] Time, July 10, 2006, p. 13.
[2] Legal and Judicial Sector Manual (2002), a World Bank publication.
[3] Law and Policy Reform, ADB Report, January 2005, pp. 26-28.
[4] 380 Phil. 780, January 28, 2000, per Panganiban, J.
[5] Id., pp. 795-796. Emphasis supplied.
[6] 357 SCRA 496, 501, May 5, 2001, per Mendoza, J. In this case, the Court stressed that “because of the preferred status of the constitutional rights of speech, expression, and the press, a law prohibiting the publication of pre-election surveys is vitiated by a weighty presumption of invalidity.”
[7] GR No. 164963, February 13, 2006, per Panganiban, CJ.
[8] GR No. 169777, April 20, 2006, per Carpio Morales, J.
[9] Bayan v. Ermita, GR No. 169838, April 25, 2006, per Azcuna, J.
[10] GR No. 171396, May 3, 2006, per Gutierrez, J.
[11] 338 Phil. 546, 604-605, May 2, 1997, per Panganiban, J. (now CJ).
[12] 445 SCRA 1, December 1, 2004, per Panganiban, J. (now CJ).
[13] GR No. 157882, March 30, 2006, per Nazario, J. The constitutionality of the Mining Law was raised anew in this case, insofar as the law allegedly ceded beneficial ownership of mineral resources to a foreign contractor. Holding that this matter had already been settled in La Bugal, the Court emphasized that the FTAA contractor was not free to do whatever it pleased and get away with it; on the contrary, it would have to follow the government line if it wanted to stay in the enterprise. The law and its Implementing Rules and Regulations vest in the government more than a sufficient degree of control and supervision over the conduct of mining operations.
[14] Republic v. COCOFED, 423 Phil. 735, December 14, 2001.
[15] Benito v. Comelec, 349 SCRA 705, January 19, 2001; Defensor-Santiago v. Guingona Jr., 359 Phil. 276, November 18, 1998; and Philippine Airlines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994.
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