* Address delivered by retired Chief Justice ARTEMIO V. PANGANIBAN during the monthly Luncheon Fellowship of the Philippine Bar Association held at the Tower Club, Makati City on March 26, 2014.
I thank your amiable President, Beda G. Fajardo, for inviting me as your Guest Speaker during today’s Luncheon Fellowship of the Philippine Bar Association. I am fortunate to enjoy a most pleasant and friendly relations with him, especially at the Asean Law Association and at the Philippine Dispute Resolution Center, Inc., where I am Chairman-emeritus and he, a member of the board of trustees and a much-sought-after professional arbitrator and mediator.[1]
Despite my non-membership in the PBA, I thank your distinguished organization for conferring on me, though thoroughly unworthy, an “Award of Honor” on the occasion of PBA’s 116th Foundation Day Celebration on April 26, 2007 after I had retired from the Supreme Court. I am truly grateful and humbled for being cited by the oldest and most prestigious voluntary bar association in our country as “a principled and visionary leader by example; a prolific writer of the Supreme Court, bar none; a renaissance man and a nobly-souled and gifted jurist; a much sought-after speaker; a recipient of over 250 awards and citations from national and international entities and organizations, including several honorary doctoral degrees; an eminent lawyer, law professor, Catholic lay worker, civic leader and businessman; a scholar imbued with mental dexterity; and, an exemplary family man.”
Yes, I have already long retired from active public life. Thus, I generally decline speaking engagements, media interviews and similar public exposures, (save for my Sunday columns in the Inquirer) but I made an exception today due to my gratitude to your association for bestowing on me the “Award of Honor.” I also thought this meeting would give me the opportunity to meet with the younger generation populating our noble calling, and exchange ideas on the present realities and future prospects of our profession.
Rapidly Changing World
Indeed, since I started practicing law in 1960, the world has rapidly changed. Take communications for example. In the 1960s, I was amazed at how conversations could be transmitted over land lines, and how black and white moving pictures could be received over long distances on television tubes. Then came colored and digital TV, telex, fax machines, cell phones, SMS, personal computers, Internet and email. Now with Magic Jack and Viber, people can talk with friends in the United States without any charge, and with Skype, can even watch each other live. With social media, like Facebook, Twitter, Linked-In and Foursquare, people can easily communicate with anyone, anywhere in the world. And with sniping, like CCTVs, YouTube, GPS, drones and robots, there are no more secrets. Soon, newspapers, land lines, movie houses, the post office and even our constitutionally-protected privacy will disappear.
From the revolutions in communications, let’s move to medicine. In the old days, physicians (and earlier, quacks and witches) were called to heal diseases; then, the medical profession veered to preventing illnesses through isolation and vaccinations, and later, it brought well-being to the healthy and good-looks to the wealthy. Now, with the new biotechnologies and stem cell research, physicians promote longevity — longer, healthier and happier lives. Even eternity is now spoken about because new sciences can regenerate worn or destroyed human tissues and organs. It is theoretically possible to grow and preserve an individual’s limbs, kidney, liver and heart – just about any organ or tissue – in laboratories, ready for use as “spare-parts” in case of illness, injury or disfigurement. [2]
Evolution of Our Political System
Of course, we should never forget the evolution of our political, constitutional and legal systems, specially as it impacts on our profession of law. As all of us know, we inherited much of our present system of government and its underlying constitutional framework from the Americans. Uncle Sam conquered not only our national territory but also our minds and hearts as it introduced here, its system of free education, free enterprise and free government; in short, liberal democracy.
The Americans built the foundations of their nation amid their struggle for political independence and against tyranny, monarchy and colonialism. They enshrined in their Bills of Rights, the liberating influences of the French Revolution and the English Magna Charta. These American revolutionary ideals are rhapsodized in Patrick Henry’s hypnotic oration, “Give me liberty or give me death.”
And so it is with our people. We fought four centuries of Spanish colonization, 50 years of American occupation, and decades of malgovernance, corruption and economic sabotage of our own Filipino leaders. That is why our basic laws are replete with fundamental rights to guarantee the political aspirations of our people. Our 1987 Constitution went beyond the US Constitution by expressly including in its Bill of Rights judicially-invented doctrines like the Miranda rights of the accused and the right to privacy of communications. In singing hosannas to protect human rights, our courts liberally copy American jurisprudence.
Very recently, our Supreme Court – in Jesus Disini Jr. vs Secretary of Justice (Feb. 18, 2014) – showed its versatility in using traditional doctrines to safeguard the freedom of expression when it struck down several provisions of the Cybercrimes Prevention Law. The ponencia of Justice Roberto A. Abad as well as the concurring and dissenting opinions of Chief Justice Maria Lourdes P. A. Sereno, Justices Antonio T. Carpio, Arturo D. Brion and Marvic Mario Victor. F Leonen are sumptuous feasts for constitutional law scholars.
Upholding Economic Rights
How I wish the same vigor and vitality in promoting our political rights would be shown by our judiciary and our legal profession to uphold our economic rights, so we can conquer poverty and usher in prosperity. And rightly so, because our 1987 Constitution mandated the promotion of economic prosperity in two sections (9 and 17) of its Declaration of Principles and State Policies and in the Bill of Rights, and dedicated a full article (Article XII) on the National Economy and Patrimony.
May I, however, point out that our Constitution was promulgated in 1987, at a time when the prevailing economic mantra was the protection of Filipino enterprises and services, summed up in the nationalistic slogan, “Filipino First.” Thus, many industries, businesses, services and professions were reserved completely or partially for Filipino citizens. Our laws, including our tariffs, taxes, and quota systems, barred the entry of foreign wares and services, and promoted Filipino enterprises and products to a point where our people were urged to patronize them even if they were inferior in quality and higher in prices than similar foreign products and services.
At that time also, the government was deeply entrenched in business. It owned and operated corporations that produced basic necessities like steel. water, electricity, telephone service, petroleum, coconut products, sugar mills, etc. The result, as we all know now, was a disaster for the economy: not only were the government firms grossly inefficient; they also lost heavily and became a monstrous burden that increased our foreign indebtedness. The National Power Corporation alone lost almost a trillion pesos and yet failed to produce enough electricity resulting in rotating countrywide black outs in the early 1990’s.
The nationalistic fervor was used (some say “misused’) when the Supreme Court, in Manila Prince vs. GSIS (Feb. 3, 1997), voided a public auction already won by a foreign company, on the ground that purportedly, the subject of the bidding, the Manila Hotel, constituted a part of the “national patrimony,” and should thus be awarded to a losing Filipino company that matched the price of the winning foreign bidder, pursuant to Section 10 of Article XII of the Constitution that states: “In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.” For the record, I was one of the dissenters in that decision.
Abandoning self-centeredness
To repeat, soon after our new Constitution was ratified in 1987, the world changed and the protectionist theories of economic development were abandoned in most parts of the world. And the era of liberalization, globalization, deregulation and privatization bloomed when the World Trade Organization (WTO) was born on January 1, 1995.[3]
The Philippine adherence to the WHO was challenged in the Supreme Court in Tanada vs. Angara (May 2, 1997), on the ground that the WTO Treaty allegedly violated the “flagship provisions” of the Constitution mandating economic nationalism. This novel case was assigned to me for study in 1995 when I entered the Supreme Court.
In upholding the WTO Treaty, my unanimously-concurred ponencia argued: “While the Constitution mandates a bias in favor of Filipino goods, services, labor and enterprises, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity, and limits protection of Filipino enterprises only 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 foreign competition that is unfair.”
May I emphasize that in embracing globalization and the WTO, our country was in fact pursuing its national interest. We recognized the stark reality that the world has become a global village where no country can progress in isolation. Even socialist countries like Russia and China have joined WTO. Only hermit kingdoms and totalitarian regimes like North Korea have not entered WTO. As a consequence, their economy stagnated in self-damning isolation. To build our nation, we must indeed look at the lessons of the past, but more importantly, we must live with the realities of the present as we plan for a better future.
I took the occasion in Tanada to proclaim my core legal philosophy of “Liberty and Prosperity Under the Rule of Law.” I believe that in litigations involving 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. But in matters affecting the economy and the prosperity of our people, courts – in the absence of grave abuse of discretion – must defer to the Executive and Legislative Branches of government, in accordance with the principle of deferential interpretation of laws and executive issuances. The responsibility for promoting and developing the country’s economy rests primarily on its political leaders. Should they fail in this duty, our people can replace them during periodic elections.
I also believe in private enterprise as the engine of economic growth. Thus, government must promote entrepreneurship and encourage private capital. At the same time, the government has the duty of overseeing the fair and equitable distribution of private wealth to all our people, especially the poor and marginalized. The government, likewise, has the responsibility of enlarging the areas of economic growth to future generations of Filipinos. Thus, the economic pie must not only be fairly divided, it must also be enlarged so that more benefits could be spread to more people under the social justice principle of giving more law to those who have less in life.
Pursuant to the doctrine of deferential interpretation on economic matters, the Tanada decision ruled, “Ineludibly, 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 when electing their policy makers.”
Indeed, when it wants to, our Supreme Court is able to transcend obsolete economic barriers by progressively citing countervailing constitutional provisions as it did in Tanada, or by thinking more creatively, as it did more recently in Initiatives for Dialogue vs PSALM (Oct. 9, 2012 per Justice Martin S. Villarama Jr.), which ruled that water flowing in a river is a natural resource reserved for Filipinos. However, once “appropriated” by a qualified local company and “collected in a dam,” it becomes private in character and may thereafter be used by a Korean firm to generate electricity.[4]
Because of the need to attract investors, there have been proposals to amend the Constitution. While Charter Change would be the more definitive and permanent solution, in the meantime, a more progressive and creative interpretation would do.
Two Ways of Interpreting the Constitution
Before leaving the subject, let me just say that there are at least two ways of interpreting or construing constitutions and laws. 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. 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 constitutional 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 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.
Globalizing the Legal Profession
The irreversible march toward globalization and deregulation encompass not only the economy, but also the professions. Section 14 of Article XII of the Constitution restricts “the practice of all professions” to “Filipino citizens save in cases prescribed by law.” All professions, except the noblest profession of law, are encompassed by congressional imprimatur. The Constitution (Section 5(5) of Article VIII) grants the Supreme Court the power to “promulgate rules concerning… admission to the practice of law…” In turn, the Court promulgated Rule 138 of the Rules of Court limiting admission to the bar to Filipino citizens who must also be Philippine residents. This rule had not been amended since it was originally issued more than half a century ago. Despite the fact that many Filipino lawyers have been allowed to practice in many states in the United States and in other countries (like PBA President Beda Fajardo who is a member of the New York bar and of the American Bar Association), this rule has not been changed — only Filipinos who are Philippine residents may practice law in the Philippines.
I think the Philippine Bar Association, reputed to be the home of the most brilliant lawyers of our country, should review this matter and work for the updating of Rule 138. There are many Philippine conglomerates that are now operating abroad. San Miguel and Philippine Airlines have long been world-class brands. But since globalization dawned in the 1990’s, many more Philippine companies have expanded overseas, like SM Investments, Robinsons Land, Metrobank, LT Group and Liwayway Marketing (makers of Oishi snacks) in China, Ayala in Vietnam and Myanmar, Petron in Malaysia, Meralco in Singapore and Nigeria, Metro Pacific in Indonesia and Thailand, Energy Development Corp. in Chile and Ecuador, and Jollibee, Cebu Pacific Air, and International Container Terminal Services (or ICTSI) all over the world. These conglomerates need Filipino lawyers to practice in these foreign lands to assure them that the contracts they enter into and the businesses they operate, conform to Philippine laws, in the same manner that multinationals operating here want their foreign lawyers to check whether their contracts and operations here conform to the laws of the countries they come from or operate in.
As one of the 10 holders of the Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity, Dean Andres D. Bautista, in a lecture on February 7, 2014, gave two real life situations showing the need to update this Rule. Let me just quote one of them. “A Hong Kong-based energy developer, Hopewell Holdings is building a $1.2 billion power plant in Sual, Pangasinan. Financing for the project will be provided by a consortium of export credit agencies such as the International Finance Corp., Japan Export-Import Bank and other international banks. The loan documents will be governed by New York laws. So, the HK developer engages the services of an international law firm, Clifford Chance with offices in New York and Hong Kong whose lawyers regularly travel to Manila to negotiate the loan and security contracts.” Question: Are these “fly-in, fly-out” lawyers practicing our profession in our country, given the expansive definition by Cayetano vs Monsod (Sept. 13, 1991) that practice of law is “any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience?”
The Association of South East Asian Nations or ASEAN, of which the Philippines is a member, envisions an integration in 2015. Its vision is a single market where goods, investments, capital, skilled labor and services freely flow. We should help prepare the legal profession for this eventuality. Let us remember that the number one export of our country are people. Our over 10 million OFWs brought in $26 billion last year and our over 1 million Business Process Outsourcing Workers remitted US$16 billion also last year.
In short, I believe foreign lawyers should be allowed to practice here, but not about Philippine law, which they probably do not know, but about foreign law where their foreign clients originate or operate in, provided there is reciprocity, that is, Filipino lawyers are given the same privilege to practice in the home states of their foreign lawyers.[5]
Need for Ethics
One final note. When I was still sitting in the Supreme Court, I made plain my vision-mission, which in part I quote: “I look for competent and ethical lawyers who are responsible, dependable and morally upright; and who courageously uphold truth and justice above everything else.” Having retired from the judiciary, I can no longer sanction those who violate these simple values. However, when these simple traits are ignored, our people lose faith in the nobility of our profession and in the efficacy of the rule of law.
Some shyster-lawyers defend the indefensible by deliberately delaying cases in the hope that the witnesses against their clients may forget the facts, or get tired, or die; or that presiding judges may retire, or get promoted thereby passing the cases to new magistrates who had no opportunity to observe the witnesses on the stand; or that the victims or their families would soon lose interest and give up the legal fight.
On the other hand, those involved in the prosecution of criminals are at times tempted to skew cases, not only by the blatant acceptance of bribes but by subtler methods, like the preparation of defective informations, intentional omission of vital evidence, fraudulent loss of documents, and frequent absences during trials. Worse it is when they file patently baseless criminal charges. While the accused may find solace in their eventual acquittal, they have to undergo needless harassment in terms of humiliation at being arrested, as well as the expenses, anxiety, sleeplessness and loss of time defending themselves unnecessarily. Filing baseless charges, whether for money or malice or otherwise, is not only unethical. It is brazenly criminal.
These malfeasances and malevolencies may provide temporary gratification and money for the greedy, but I assure you, in the long term, they are self-defeating for soon enough the shysters and the corrupt are exposed and get caught. But whether they get caught or not, they surely do a disservice to our noble calling and mock our sworn duty to uphold justice. Worse, they betray our people and tempt them to look for harsher alternatives to vindicate their quest for justice via the ways of the jungle and the gun.
I end this speech with my hope that the PBA, as the home of the more enlightened and well-to-do lawyers of our country, will heed my call: first, for a rededication to competent and ethical practice; second, for a fresh look into the globalization of political and economic rights: and finally and consequently, for the legal profession not only to safeguard the liberty of our people, but also to help them conquer their poverty and nurture their prosperity. Yes, justice and jobs; freedom and food; ethics and economics; democracy and development; liberty and prosperity must always go together. One is useless without the other.
Maraming salamat po.
[1] Arbitration is the only dispute resolution method where parties may choose their own judges. Arbitral decisions are final and unappealable to our judiciary, not even to the Supreme Court, except by the extra-ordinary remedy of certiorari based on grave abuse of discretion.
[2]Let’s also look at business, a subject close to the corporate legal practitioners. In the 19th century, most enterprises were conducted by single proprietorships. Then came partnerships. And as businesses grew more complex, came giant corporations run by professional executives to conduct the business of the moneyed who enjoy the blessings of life, just waiting for dividends and for growth in the market price of their shares of stock. With more complicated and inter-related undertakings, conglomerates were born.
And with globalization, deregulation and privatization, came multinationals spanning the world. At times, conglomerates and multinationals become more powerful than governments. The collapse of Lehman Brothers triggered the financial crisis of 2008, which almost brought the United States, most powerful economy in the world, to its knees and the near-collapse of Ireland, Greece and other countries. It is said that the Philippines is fortunate not to be adversely affected by this financial crisis because our economic ship was still tied up at the piers when the financial storm hit the high seas of international commerce and industry.
I can give a myriad of other branches of knowledge that have evolved and transformed over the years, including astronomy (with the use of the giant space Hubble telescope), physics (with the discovery of Higgs boson or god-particle), politics, nuclear warfare, engineering, accounting, energy, transportation, banking, just about any human endeavor, including the conquest of time and space. They have all drastically evolved during the last three decades.
[3] The WTO ushered, to quote the Supreme Court in Tanada vs Angara (May 2, 1997), “a new borderless world of business by sweeping away as mere historical relics the heretofore traditional modes of promoting and protecting national economies like tariffs, export subsidies, import quotas, quantitative restrictions, tax exemptions and currency controls. Finding market niches and becoming the best in specific industries in a market-driven and export-oriented global scenario (replaced) age-old ‘beggar-thy-neighbor’ policies that unilaterally protected weak and inefficient domestic producers of goods and services.”
[4] However, there are instances too when the Supreme Court refused to be creative and became restrictive in interpreting the economic provisions of the Constitution. One recent example is Gamboa vs Teves (June 28, 2011 per Justice Antonio T. Carpio), which held that the 40 percent constitutional limitation on foreign ownership in public utilities, like telephones, should be computed only on the “shares of stock entitled to vote in the election of directors… not to the to the total outstanding capital stock,” which may include non-voting shares.
In several speeches, I have discussed this controversial decision, but for today, let me just say that when this nationalistic provision was included in the 1935 Constitution and until now under the present Constitution, 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 their capital here. I think it would not be fair to penalize them or to deprive them of their investments now under the new Supreme Court ruling. They have relied in good faith on the representation of our government that they were not violating the Constitution in making their investments. To be fair, and to retain the trust of foreign investors, I think the decision should be made prospective, and investors should be given time to divest or to adjust to the new decision.
[5] I agree with Dean Bautista’s proposals to allow foreign lawyers to practice here on a limited basis, provided that (1) their practice is restricted to foreign law (whether of their home or of a third country), (2) their practice be limited only to the equivalent of the English “solicitor,” not to that of the “barrister,” (3) their home countries provide reciprocal rights to Filipino lawyers, and (4) they be required to follow a “Code of Responsibility for Transnational Lawyers.”
The Personal Website of Retired Chief Justice Panganiban 