How the Supreme Court can help Aquino

MANILA, Philippines—In his State of the Nation Address, President Aquino did not define his relations with the Supreme Court. Nonetheless, he hot-buttoned several topics that will inevitably involve our judiciary, like extrajudicial killings, tax evasion, the witness protection program, “wrongdoings committed in the last six years,” etc.

Battling poverty. In his war on poverty, he highlighted the building of infrastructure like highways, railways, airports, seaports, grain terminals, waterpower, electric power and petroleum production. He reminded me of the freeway and bridge building program of US President Dwight Eisenhower in the 1950s.

Taking lessons from how Germany rose from the ashes of World War I to metamorphose in barely two decades into an industrial giant huge enough to launch World War II, the US President noted the many autobahns crisscrossing Germany, which facilitated its industrialization and trade. Now, Eisenhower is remembered not only for his war heroism but also for building the fantastic freeways which decongested cities and transported prosperity all over America.

The construction of infrastructure creates jobs that are sorely needed by our people. The multiplier effect of spreading money via jobs and construction supplies, plus the development of related activities like tourism and trade, are clear.

P-Noy lamented that, due to lack of funds, the government cannot undertake this infrastructure-job-creation strategy by itself. Hence, he proposed “public-private sector partnerships,” in which private investors would be tasked to “Build-Operate-and-Transfer (BOT)” projects and collect reasonable tolls from users to recover their capital and a modest profit.

Why BOTs bog down. These partnerships and BOT schemes are not new. Past administrations have used them. However, many of them, like the construction of Terminal III of the Ninoy Aquino International Airport, bogged down after many dizzying disputes erupted. Without casting aspersions on any specific project, these breakdowns usually result from wrong bidding processes, graft and lack of transparency in the grant of BOT projects, toll-setting disputes and inordinate delays in judicial processes.

Here’s where P-Noy could have asked for collaboration. Indeed, the Supreme Court can help—without compromising judicial independence—by prioritizing infrastructure suits. While their review cannot be railroaded, hearings can be set at a faster pace and judgments issued soonest. Also, when tolls are contested, it may not be prudent to enjoin their collection. A better alternative would be to put the questioned tolls in an escrow account with individual receipts being issued just in case a refund is ordered at the end of the litigation. In this way, investors are assured that their huge investments are bankable and protected.

By helping nurture the prosperity of our people and enabling our policymakers to battle poverty, courts are really obeying the constitutional mandate “to promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty.”

Many past Supreme Court decisions have used my judicial philosophy of “liberty and prosperity under the rule of law,” which in part states that, absent grave abuse of discretion, courts should not pass upon the merits or wisdom of economic programs, which have been left by the people to the political branches of government. What is beneficial, advantageous, feasible and practical are policy issues that are best decided by the president and the economic managers of the country.

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Different interpretation. In his letter to the Inquirer (July 27), retired Justice Dante O. Tinga wrote that to strengthen the Anti-Money Laundering Law (Amla), congressional amendment is needed. That Congress should revise the law, I will not dispute. In fact, I proposed that in my July 11 column.

However, I respectfully differ from the decision he wrote in Republic vs Eugenio (Feb. 14, 2008) holding that since Amla did not expressly grant the courts the power to issue bank inquiry orders ex-parte, then the courts must first give notice to the depositor and conduct a hearing before they can authorize an inquiry into ill-gotten wealth deposited in banks.

I wrote on July 11 that by this interpretation, “the Court defanged the bank inquiry tool because the depositor, once alerted, will not only resist the government’s inquiry but will surely empty the account too.” I believe that since the law did not expressly prohibit ex-parte grants, then courts may issue them at their sound discretion, to give effect to the law’s rationale, which is to catch big time grafters via their ill-gotten deposits.

Our opposing views boil down to a choice of how to interpret anti-corruption laws: literal or liberal, the letter or the spirit, the naked provision or the ultimate purpose, legal syllogism or in context of social conditions. I believe that laws are not isolated stones randomly strewn in the dark forest; rather, they are specially molded bricks to be used in the construction of the ultimate social edifice. Jurists are not mere automatons who robotically and unthinkingly apply the law; they are social engineers called upon to help build our nation of 90 million Filipinos.

The Eugenio case is one concrete example of how an activist Supreme Court could have helped in the battle against ill-gotten wealth by interpreting Amla like enlightened social engineers. Sayang.

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