Transcript of the extemporaneous Closing Remarks of retired Chief Justice ARTEMIO V. PANGANIBAN during the Public Lecture of retired Justice Adolfo S. Azcuna, Chancellor of the Philippine Judicial Academy, held on April 18, 2013 at the Justitia Room, Ateneo Professional Schools, Rockwell Center, Makati, sponsored by the Philippine Judicial Academy of the Supreme Court and the Foundation for Liberty and Prosperity.
After witnessing the blessed and heartwarming events this afternoon, which featured not only the enlightening lecture of Justice Adolf Azcuna titled “Supreme Court Decisions on the Economic Provisions of the Constitution” but also the presentation of the Teehankee Center Rule of Law awards to Justice Ameurfina Aguinaldo Melencio-Herrera and me, what can I really say but to express my sincere “Thank you” to all the good institutions and people who have made these blessed events possible.
At the outset, let me say “Thank you” to the Chief Justice Teehankee Rule of Law Center, especially to its Chairman, Chief Justice Hilario G. Davide Jr and its Executive Director, Ambassador Manuel A.J. Teehankee, for selecting me (together with Justice Amor) as the 2013 Recipient of the Claudio Teehankee Rule of Law Award. Though I feel thoroughly inadequate and unworthy of this distinction, I humbly accept it as a duty to work even more fervently and diligently for the promotion of the rule of law in our country. I also thank them for inviting me to join the Claudio Teehankee Foundation as one its trustees. Although I have made it a personal policy to refrain from accepting any more responsibilities now that I have retired from active public life and although I am already loaded with several private endeavors, I am making an exception to this personal policy, in deference to Chief Justice Teehankee whom I admire, to Chief Justice Davide whom I esteem and of course to Ambassador Dondi Teehankee.
I have many reasons to thank our honored lecturer today, Justice Adolf S. Azcuna, first, for his scholarly and incisive presentation of some decisions of the Supreme Court on the economic provisions of the Constitution.
Let me at this point respond briefly to some of the cases discussed by Justice Adolf. As he said, the Manila Hotel case (Manila Prince Hotel vs GSIS, Feb. 3, 1997) was quite contentious. Chief Justice Davide and I were with the minority. I wrote a dissent saying in brief that Manila Hotel was not a one of the ”rights, privileges, and concessions covering the national economy and patrimony” that Section 10 of Article XII gives “preference to Filipino citizens.”
Also, to give undue advantage to Filipinos over a clearly superior Malaysian bid for the Manila Hotel violates basic fairness encapsulated in the principle of “leveling the playing field.” Nonetheless, we should still congratulate Justice Azcuna who was counsel for the winning petitioner. He was not yet a member of the Court at that time. He won fair and square, and under the rule of law, we accept his victory.
As Justice Azcuna pointed out, I was the ponente of the second case he discussed, La Bugal-B’Laan vs Ramos (Dec. 1, 2004), which upheld the constitutionality of the Mining Law of 1995 by vote of 10-4 with Justice Adolf inhibiting because his former law firm was counsel for the private respondents. In the original decision promulgated on Jan. 27, 2004, which was voted 8-5, I was the leader of the minority. However, the Court had a yearlong deliberation on the Motion for Reconsideration, which I won at 10-4. I am happy that CJ Davide voted with me. You, my dear audience, admire great and persuasive lawyers during oral arguments in the Supreme Court. But I tell you, the arguments during the internal deliberations of the Court, which are confidential and are never known by the public, are at times more passionate and more telling than those in the open hearings.
The PLDT case (Gamboa vs Teves) discussed by Justice Adolf was promulgated on June 28, 2011 when both CJ Davide and I have already retired. Before talking any further, let me disclose that I am an Independent Adviser ofPLDT. As summed up by our distinguished lecturer, the Court – through Justice Antonio T. Carpio – ruled that in determining the 40 percent maximum equity that foreigners may hold in public utilities, only the voting shares should be taken into account, not the entire capital stock that includes the non-voting shares.
In several speeches, I have discussed this controversial decision, but for today, let me just say that this is the first time the Supreme Court has spoken on the subject. Since 1936, when this nationalistic provision was included in the Constitution and onwards till the present Constitution, the Executive Department, particularly the Department of Justice and the Securities and Exchange Commission, have interpreted the constitutional provision to refer to the entire capital stock, not just to the voting shares.
On this basis, many foreign investors have brought equities here. I think it would not be fair and to penalize them or to deprive them of their investments now under the new ruling. They have relied in good faith on the representation of the authorities that they were not violating the Constitution and the law in making their investments, which are now found to be irregular under the new ruling. I think the decision should be made prospective, and investors should be given time to divest or to adjust to the new decision.
Because of the need to attract investors, there have been proposals to amend the Constitution. But some believe Charter Change is unnecessary. Only a more progressive interpretation is needed. The question is, in view of the changed and changing circumstances and requirements of our country, do we need to amend the Constitution, or just to interpret it more progressively to meet these new challenges?
As I wrote in my Inquirer column last Sunday, there are at least two ways of interpreting constitutions and laws, and I quote, “Should they be read according ‘to the letter that killeth or to the spirit that giveth life.’ Should they be construed on the basis of their text and words, or on their underlying rationale and philosophy? Should the Constitution be understood strictly on what its framers originally intended, or liberally taking into account the ever changing economic, social and political milieu?
“The textualists or originalists interpret according to the original intent of the framers, regardless of the dire consequences on current and future events. They rely on ‘dura lex sed lex.’ Their self-imposed duty is ‘to apply laws faithfully and desist from engaging in socio-economic or political experimentations,’ which they denounce as ‘judicial legislation.’
“On the other hand, the liberals or progressives believe in a living Constitution; one that grows with time, solves the vagaries of the present and anticipates the needs of the future. Chief Justices Davide, Puno, Sereno and I belong to this latter group who believe that jurists are not mere social technicians and legal automatons. Rather, they are social engineers who courageously fix their gaze on the underlying principles and overarching aspirations of the Constitution to nurture a free and prosperous nation.”
The United States Supreme Court has been struggling for a long time on these differing schools of thought of constitutional and statutory construction. During my term as Chief Justice, I visited US Justice Antonin Scalia, said to be the leader of the originalists in the US Court. I was inviting him to speak before the Global Forum on Liberty and Prosperity that our Supreme Court was sponsoring on October 18-20, 2006 just prior my retirement. He smiled and said, “Mr. Chief Justice, you do not really want me there. I would be useless in the Forum because I do not believe in international law. When I joined the US Supreme Court, I swore to defend and implement the US Constitution and nothing else. And I interpret it according to the original intent of our framers, which did not include international law. Please see my friend, Justice Anthony Kennedy. I am sure he will welcome an opportunity to expound on his international philosophies and ideas.”
True enough, when I saw Justice Kennedy later, he agreed to speak at our Global Forum even if via teleconferencing only, because he had already committed to be in another venue on those dates.
I mention this incident with Justices Scalia and Kennedy to show that we are not unique in our differences of interpretation. Even the US Supreme Court in divided on that issue.
May I further thank Justice Azcuna for being a leading member of the Panganiban Court and for espousing my philosophy of “liberty and prosperity under the rule of law.” He expressly wrote on this philosophy in his sterling ponencia in Bayan vs Ermita (April 25, 2006), in which our Supreme Court unanimously struck down the so-called “Calibrated Preemptive Response” or CPR policy of the Macapagal-Arroyo government and reiterated the maximum tolerance dictum in allowing public assemblies, rallies and demos as parts of the right of free speech. And beyond that, Justice Adolf’s decision decreed the creation and establishment of at least one freedom park in every city and municipality in our country.
Let me further thank Justice Azcuna for overseeing the completion, inauguration and full operation of the Philippine Judicial Academy Training Center in Tagaytay which was started by Justice Amor as the first Chancellor ofPHILJA. I am sorry that I overlooked mentioning his name in my Inquirer column two weeks ago when I wrote on this topic.
The PHILJA Training Center was funded by a P300 million no-strings grant given by the Japanese government during my term as Chief Justice even if at that time, we did not have any architectural plans and specifications. Then Japanese Ambassador Ryuichiro Yamazaki handed me the check for P300 million on January 26, 2006 without any condition, not even the usual grant requirement to hire Japanese consultants and to use Japanese equipment in the project. Instead, my good friend, the ambassador, relied on my verbal assurance that the Center would be built and competed at the best terms and at the earliest time possible.
May likewise I thank Metrobank Foundation, especially its energetic president, former Cabinet Secretary Aniceto Sobrepena, not only for co-sponsoring the Professorial Chairs Program of the Foundation for Liberty and Prosperity, but also for hosting today’s merienda.
Finally, may I express my appreciation and gratitude to all the participants in this afternoon’s event, especially Dean Sedfrey Candelaria, himself one of the ten holders of the “Chief Justice Panganiban Professorial Chair on Liberty and Prosperity,” and the Ateneo de Manila for never tiring host activities of the Foundation for Liberty and Prosperity here at the Ateneo Professional Schools.
Maraming, maraming salamat po sa inyong lahat.