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ANLO
Neither the Role that is Indifferent nor is Overbroad:
Ensuring Freedom of the People
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I. Introduction - Development
The World Bank acknowledged that the challenge of
development is to encompass the entire gamut of change in a given
social system. The bank affirms the complex and multidimensional
nature of development in stating that:
The challenge of development is to improve the
quality of life a better quality of life generally calls for
higher incomes but it involves much more. Itencompasses as ends in themselves better education,
higher standards of health and nutrition, less poverty, a
cleaner environment, more equality of opportunity,
greater individual freedom, and a richer cultural life.1
The complex and multidimensional goals of development are
approached in a revolutionary manner by Amartya Sen with his
concepts of functionings and capabilities. His Capabilities
Approach to development argues that what matters the most for
people is their capability to function. The concept offunctionings
reflects those tangible and intangible things that a person values
doing. These valued things vary from simple ones like proper
nutrition and avoidance of disease to more complex ones like having
1 World Bank (1991). World Development Report, 1991. (Oxford University Press: New
York) p. 4
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self-respect and involvement in the community.2 Capabilities on the
other hand refer to the freedom that a person has in terms of his choice
of functionings, given his personal features (converting personal
characteristics into functionings) and his command over commodities
(availability of goods and services).3 It is thus appropriate that Sen
titled one of his books as Development as Freedom.
Therefore, development can be seen both in its physical reality
and as a state of mind, the former being that of real and tangible
structures of development like buildings, roads, bridges, factories, etc.
and the latter being that of the intangible but considered essentials for
the enjoyment of the benefits of development. The two aspects of
development have in them combinations of social, economic, and
institutional processes having the end goals of, first, increasing the
availability and widening the distribution of basic life-sustaining
goods, second, raising the levels of living, and third, expanding
the range of economic and social choices available.4
2 Sen (1999).Development as Freedom. (Alfred Knopf: New York) p. 753 Sen (1985). Commodities and Capabilities. (North Holland: Amsterdam) p. 10-114 Todaro (2003). Economic Development, 8th Ed. (Pearson Addison Wesley: Boston,
Massachusetts) p. 22-23
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According to Sens view, the third goal is a sine qua non
requirement for national development, the third being replete with
freedom issues. The absence of freedom contemplates the inability to
choose due to oppressive forces of servitude and dependence.
Therefore, the expansion of choices is a logical outcome of a
development as freedom. In illustrating this point, Sen frequently used
issues on discrimination especially gender biasness. One such
example is that of an illiterate woman who gives birth every year,
with her illiteracy and its accompanying poor employability as the
repressive forces. The increased availability of goods and general
increase in the average level of living will hardly make a dent out of
the poverty trap this woman is in. Freedom then from these forces of
ignorance and human misery is the most viable answer to the
attainment of development.
Granting that Sens espoused view is true, that freedom reflects
development, it is thus incumbent that freedom should the key theme
of any discussion on development, and when we talk of freedom,
democracy and the rule of law are the things that usually first pop out
of our minds. The inescapable question now then is what role should
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the rule of law fill in this development as freedom process?
II. Setting the Stage: Development as Multidimensional
The interplay between law and development is not a new thing;
the ideology has been around for almost half-a-century already. The
1960s saw the rise of Law and Development (or more popularly
known as Law and Economics) Movement. American development
and legal scholars acknowledged that the rule of law plays an essential
role in a countrys objective of development and Third World
development saw the channeling of foreign aid into westernizing their
legal and judicial systems. The movement had the guiding
assumption that law is an engine for social reform and lawyers and
judges could serve as social engineers.5 Members of the bench and
bar when learned about the discourse on development would advance
reform efforts by bridging the gap between the law on the books and
the law in action.6
At the first World Bank conference on Comprehensive Legal
5 Merryman (1977). Comparative Law and Social Change: On the Origins, Style, Decline
& Revival of the Law and Development Movement." 25 The American Journal of Comparative
Law 457. p. 458-4596 Burg (1977). "Law and Development: A Review of the Literature and a Critique of
'Scholars in Self-Estrangement." 25American Journal of Comparative Law 492. p. 495
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and Judicial Development, Sen discussed the importance of legal
reform within the comprehensive development framework. He said
that development has a strong association of meanings that makes a
basic level of legality and judicial attainment a constitutive part of
it.7 He emphasized the values of conceptual integrity vis--vis the
causal interdependence between legal and other kinds of development.
The difference between concepts and causes lies on the level of
aggregation. There is a causal interdependence between economic,
political, social, and legal developments that when summed up to
form a whole, the aggregate formed is that of national development.
The caveat of this aggregation is its reliance on the fidelity of the
disaggregated developments to the conceptual integrity of national
development.
Following the causal interrelation vis--vis conceptual integrity
approach, the new framework for development strategies and
programs now focuses on a holistic and integrated approach, which
former World Bank president James Wolfensohn refers to as the
7 Sen (2000). What is the Role of Legal and Judicial Reform in the Development
Process? [Electronic Version]. Role of Legal and Judicial Reform in Development(World Bank
Legal Conference, Washington, DC, 5 June 2000). < http://siteresources.worldbank.org/INTLA
WJUSTINST/Resources/legalandjudicial.pdf>, p. 9
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highlight of the interdependence of all aspects social, structural,
human, institutional, environmental, economic and financial.8
The interdependence of development issues can be seen in light
of the situation in African Union countries. A forum in that continent
tried to seek answers as to how can they address this issue. One output
of that forum argues that the the culture of lack of, and disregard for
the doctrine of the rule of law is pervasive in African Union
countries. The result is weak development of rule of law
contributes significantly to the endemic social and political instability
in many African countries. In turn, this impacts negatively on social
and political stability andprogress.9
It is then clear that the rule of law is essential in this
interdependent system for development. Looking back at Sens
example which portrays an illiterate woman, we can notice that even
with an enactment of laws for equal opportunity employment she still
cannot compete fairly against those who are literate. The
8 Todaro (2003), supra p. 1109 Gutto (2002). The Rule of Law, Human and Peoples Rights and Compliance/Non-
Compliance with Regional and International Agreements and Standards by African States,
[Electronic Version].African Forum for Envisioning Africa, Nairobi, Kenya, 26 29 April 2002 .
(Centre for Applied Legal Studies, School of Law, University of the Witwatersrand:
Johannesburg, South Africa) p. 3
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disaggregated developments will be not in fidelity to the conceptual
framework of national development. Economic efficiency would not
jive with the imposed rule and thus present a motivation for violation
and law-breaking. This hammers the two prong approach of causal
interrelation and conceptual integrity; each disaggregated
development having specific roles to play which would complement
each other and mutually reinforce their fidelity to the conceptual
integrity of national development. The path for this paper then is to
present the rule of law in light of the current literature on its specific
role on national development. The matter at hand is similar to
Goldilocks choice of porridge; one that is not too hot and is not too
cold but is just right. This is a case of being just right in order to
keep the rule of law on its role that is in fidelity to the conceptual
integrity of development.
III. National Development and the Rule of Law
It was in the year seventeen seventy-six when Adam Smith first
published his monumental work on the political economy of the
Industrial Revolution, hisAn Inquiry to the Nature and Causes of the
Wealth of Nations. In it he said that the natural effort of every
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individual to better his own condition, when suffered to exert itself
with freedom and security, is so powerful a principle, that it is alone,
and without any assistance, not only capable of carrying on the society
to wealth and prosperity, but of surmounting a hundred impertinent
obstructions; through the effect of these obstructions is always more
or less either to encroach upon its freedom or to diminish its
security.10 This emphasized the role the individual plays in the
pursuit ofpersonal development. The Homo oeconomicus or the
Economic (Hu)Man thus have been established together with the view
of actions that this economic animal would do in order to satisfy
various wants and needs, actions which have been viewed as
motivated by self-preservation and even darkly as motivated by greed.
It is unfortunate that this world was created with limited, and at times,
scarce resources. Add the various wants and needs of more than six
billion human beings with further considerations of economic (i.e.
availability of resources, purchasing power, etc.) and non-economic
variables (catch all which includes social, political and legal factors),
we now have a situation wherein sectors of humanity, more
specifically developing countries like the Philippines, are faced with
10 Smith (1776). An Inquiry into the Nature and Causes of the Wealth of Nations,
[Electronic Version]. Edited by S.M. Soares. (Metalibri Digital Library, 5 th February 2007) Vol. II,
book IV, chapter V, p.358.
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the dichotomy of abundance and of scarcity. Poverty, inequality and
underdevelopment have become an oppressive force which
undermines peoples lives and our emancipation from which is much
clamored for.
According to Smith, the duty of the sovereign, that of
protecting, as far as possible, every member of the society from the
injustice or oppression or the duty of establishing an exact
administration of justice .11 Add to this Amartya Sens compelling
argument that development is freedom, the freedom for life choices
has thus exemplify what is true development given the fact that people
have the full enjoyment of the benefits of a well-off life, of personal
development and its aggregated form of national development.
As an illustration of the just how integrated things are, take the
view of economic development. A nominal value of one million
pesos would mean nothing if a country is suffering from
hyperinflation with prices rising every hour. Similarly for legal
development, the same one million pesos would mean nothing if, say,
it could be taken away arbitrarily, or stolen without impunity, or if an
opponent in a case in court is ready, willing and able to pay two
11 Id. Vol. II, book V, chapter I, p. 709
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million pesos to a judge who is also ready, willing and able to accept
the bribe. The goal of the disaggregated developments having causal
interrelations with each other is thus clear, that being the assurance
that people enjoy the benefits of freedom. The question therefore is
more on the roles for each that is faithful to the conceptual integrity of
the framework of development.
A report by the World Bank on the Wealth of Nations
explains that a nations wealth consists of natural capital, or all the
natural resources of a country, produced capital, or the man-made
resources of a country which includes machineries and the like, and
lastly but consisting the largest share, intangible capital, which
consists of an amalgam of human capital, governance, and other
factors that are difficult to value explicitly.12 The significance of this
acknowledgement is that since wealth can be made and derived from
these intangible assets, development should also focus and include
these, especially governance elements that boost the productivity of
the economy. For example, if an economy has a very efficient judicial
system, clear property rights, and an effective government, the result
12 The World Bank (2006), WHERE IS THE WEALTH OF NATIONS? Measuring
Capital for the 21st Century. (The International Bank for Reconstruction and Development/The
World Bank, Washington, DC)
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will be a higher total wealth and thus an increase in the intangible
capital residual.13 The impetus for investing on the development of
these intangibles is even more for the Philippines considering that of
the wealth per capita of nineteen thousand three hundred and fifty one
dollars, fifteen thousand one hundred and twenty nine dollars of
which are accountable to the intangible asset.14
A. What is the Rule of Law?
The rule of law is an oft-cited legal argument but at the same
time oddly escaping any definition. A taxonomic way to define it was
posited in stating that the rule of law is a set of uniformly enforced,
established legal regimes that clearly lay out the rules of the game.15
Being held up in loose terms, it would be better to leave it as is,
without a precise or definite elucidation thus leaving room not for
ambiguity but for flexibility. Due to this elusive nature of the term, it
would be best to give a floating definition of the rule of law. Giving a
strict definition of the rule of law will limit it within the terms it is
couched. This is similar to how 1934 Constitutional Commission
13Id.p. 87
14 Id.p. 162 (derived from tables)15 Upham, Mythmaking in the Rule of Law Orthodoxy. Working Paper No. 30, 2002.
(Carnegie Endowment,Rule of Law Series: Democracy and the Rule of Law Project)
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delegate Jose Laurel rejected precise definition on the Bill of Rights
precise definition might prove constricting and prevent the judiciary
from adjusting it to the circumstances of particular cases and to the
ever-changing conditions of society.16 It would be sufficient to
understand the term in light of what the World Bank considers as the
key components of the rule of law are a fair, impartial and accessible
justice system and a representative government.17 It is better then to
know it as the rules of the game as played through its parts, which
are independent, efficient, and accessible justice system and
representative government, which hereunto referred to as legal
institutions, rather than rely on an idea popularly known but not
elusive of definition.
B. Legal Institutions and Development
This paper treats the rule of law as the workings of the entire
gamut of legal institutions and vice versa, both being essentials to a
healthy democracy. The triumph of western democratic economies
over the disillusioned Marxist-Maoist communist economies bolstered
16 Cruz (2000). Constitutional Law, 2000 Ed. (Central Lawbook Publishing Co., Inc.:
Quezon City, Philippines) p. 98-9917 Morita and Zaelke (2006). Rule of Law, Good Governance and Sustainable
Development. Presented at the Seventh International Conference on Environmental Compliance
and Enforcement. < www.inece.org/conference/7/ vol1/05_Sachiko_Zaelke.pdf> p. 16
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the belief that national development, especially in developing
countries, should be engineered like the western model.18 The western
model carries with it the various institutions, which include the legal.
Beyond the intrinsic value of these institutions, the quality of the legal
institution affects the economic development of a country.19 The
interdependent effects can be seen as Sens causal interrelation.
However, there is an indication of a competing dichotomy arising
from this quality; the State can be strong enough, on the one hand, to
protect property rights, and on the other hand, to ease or even
expropriate private property. Strong legal institutions would enhance
the credibility of a government under normal circumstances, but
during crisis situations, this will hamper efficiency and flexibility. In
order to highlight this, take the example of an independent
constitutional court, say the Supreme Court of the Philippines. Say
that the Court encourages investments into the country by protecting
private property against arbitrary takings by the executive branch.
Conversely, when a country is faced by a crisis such a stance would
be detrimental to the efforts of the other branches of government to
18 Todaro (2003),supra p. 124-12519 Stephen (2007). Topic Brief: Economic Development and the Quality of Legal
Institutions. (Department of Government and Law School, Harvard University) < http://siteresour
ces.worldbank.org/INTLAWJUSTINST/Resources/LegalInstitutionsTopicBrief.pdf >
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react against the crisis, thus showing the government as weak and
indecisive thus unfavorable to business. Thus, the first issue of just
right is timing on application of strength and strictness. However, is
this contrary to the nature of the rule of law which calls for it to
apply to all or no one?
My answer to the question is in the negative, at least from the
Philippine Constitutional perspective. The Constitution provides that
No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of
the laws.20 Fr. Bernas has this to say on the equal protection clause:
The equality guaranteed is not a disembodied
equality. It does not deny to the state the power to
recognize and act upon factual differences between
individuals and classes. 21
Jurisprudence defines equal protection as similar treatment as
to the rights conferred and responsibilities imposed to all persons or
thingssimilarly situated.22 Rather than running counter to the equal
protection clause, the timing principle is actually supported by equal
20 Const. art. III, sec. 121 Bernas (2003). The 1987 Constitution of the Republic of the Philippines: A Commentary,
2003 Ed. (Rex Book Store, Inc.: Manila, Philippines) p. 13622 Ichong v. Hernandez, 101 Phil. 1155
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protection since the circumstances which pervades a specific time or
the context it is within is the situation, and normal situations are quite
obviously dissimilar to crisis situations, as long as the application is
not with an evil eye and an uneven hand.23 In addition, the
guaranty of equal protection is dynamic to provide for more
adjustability to the swiftly moving facts of our changing society. 24
The task now then is to effectively determine the quality of legal
institutions.
C. Relationship of Rule of Law Indicators and Development
A World Bank study used six aggregate indicators representing
six basic governance concepts namely (1) Voice and Accountability,
(2) Political Instability and Violence, (3) Government Effectiveness,
(4) Regulatory Burden, (5) Rule of Law and (6) Graft in order to
determine the correlation of bad or good governance and economic
growth in 150 countries. Indicators report subjective perception of
respondents on the quality of each in their home country. The result
was evidencing a strong causal relationship that governance matters
to better development outcomes.25
23 Yick Wong v. Hopkins, 118 US 35624 Cruz (2000), suprap. 12225 Kaufmann et al (1999). Governance Matters, [Electronic Version]. Policy Research
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Another survey study correlating economic freedom and
economic growth in 56 countries indicates that de jure judicial
independence has no effect on economic growth while de facto
judicial independence has positive effect on economic growth.26
Judicial independence serves as a dummy for the degree freedom
experienced by each country. The underlying assumption is that since
an independent judiciary is essential for the rule of law, then it is a
good indicator of the freedom that the rule of law ensures.
Critical Legal Studies (CLS) scholars are less optimistic
regarding the impact of an independent justice system on the
economy. The criticism being that doctrinal approaches to the rule of
law are insufficient to fully document what is being measured, that
being its role on national development.27 CLS considers the rule of
law as riddled with political bias and is too ambitious resulting to a
failure of what it promised to deliver. Immediate level outcomes are
Working Paper 2196. (The World Bank, Development Research Group, Macroeconomics andGrowth and World Bank Institute Governance, Regulation and Finance: Washington DC) < http://
www.worldbank.org/wbi/governance/pdf/govmatrs.pdf> p. 1826 Feld and Voigt (2002). Economic Growth and Judicial Independence: Cross Country
Evidence Using a New Set of Indicators, [Electronic Version]. < http://siteresources.worldbank.o
rg/INTLAWJUSTINST/Resources/ecogrowth.pdf> p. 25-2627 Jensen and Heller (2003). Eds.Beyond Common Knowledge: Empirical Approaches to
the Rule of Law. (Stanford University Press: Palo Alto, California) p. 1-2
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favored over the more ambitious results like that of developed world
status. Court transparency and efficient docket management would be
better in the long run with informal and alternative dispute resolution
and an understanding of local legal culture and political economy than
that of the legal formalisms judicial centric and doctrinal beliefs on
the independence of judiciaries.28
In reconciling the rule of law approaches with the critique by
CLS, it was posited that the rule of law orthodoxy should be
complemented by legal empowerment alternatives.29 The
alternatives are defined as the use of legal services and related
development activities to increase disadvantaged populations control
over their lives.30 Sounds familiar, isnt it? The reason is that the
argument is based on Amartya Sens Development as Freedom
capabilities approach. They refer to it as Development lawyering31
wherein the presence and availability of lawyers services on an as
needed basis gives legal capacity to the people rather than having a
28 Erik Jensen (2003). The Rule of Law and Judicial Reform: The Political Economy of
Diverse Institutional Patterns and Reformers Responses, in Jensen and Heller,supra, p. 33629 Golub and McQuay (2001). Legal Empowerment: Advancing Good Governance and
Poverty Reduction, [Electronic Version]. (Law and Policy Reform, Asian Development Bank)
p. 530 Id. p. 2531 Id. p. 38
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monolithic courthouse which is closed to the legally illiterate, or in the
words of a paper on the subject:
It is ironic, in fact, that some organizations that fund
extensive research on legal systems or human rights
conduct virtually none on the impact of their own law-
oriented programs. It can be far more rewarding to report
anecdotal progress to the higher levels of an institutional
hierarchy than it is to undertake the kinds of in-depth
quantitative and qualitative inquiries that might
contribute to learning and impact but might also yield
negative results. Until such research is valued ascontributing to progress even if it reveals problems, law-
oriented work will lag behind other development fields in
terms of both sophistication and impact.32
IV. A Case for Philippine Development
In 22 September 2004, President Arroyo issued Presidential
Proclamation 713 Declaring September of every year as Rule of Law
month and for the Department of Education to implement programs
and activities in the observance thereof has one of its whereas that
the rule of law ensures the orderly enjoyment by all persons of their
rights and freedoms and secures the attainment of national
development, economic progress, and political stability.33 The
proclamation raises on the level of national policy the recognition that
32 Id.p. 3333 Proc. No. 713 (2004)
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freedom and national development goes hand in hand, or in the words
of Sen, Development as Freedom. Chapter 7 of the Medium Term
Philippine Development Plan identifies the rule of law as a basic
need. Again, there is recognition of the link between the rule of law
and development. The plan has an Action Program for Judicial
Reform which contains a comprehensive set of reform projects for the
enhancement of the governments performance for improved
delivery of judicial services.34 The governments answer to the role
of the rule of law therefore lies at all fours with the Law and
Developments approach on the improving the quality of institutions
and the accessibility of legal services.
In highlighting these institutions, I now return to the earlier
issue on the judicial administration of the rule of law. I presented the
timing principle and the essential difference between normal and
crisis situations. Philippine jurisprudence has its share of judicial
intervention in economic policy and planning. The cases of Manila
Prince Hotel v. Government Service and Insurance System,35 Garcia
34 NEDA (2004). Chapter 17 Basic Need: Rule of Law, [Electronic Version]. 2004
2010 Medium Term Philippine Development Plan. , p. 19135 267 SCRA 402 (1997)
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v. Board of Investments36 and JG Summit Holdings, Inc. v. Philyards
Holdings, Inc.37 are decisions of the Supreme Court that have been
heavily criticized by the business community as stumbling blocks to
the development of a vigorous economy, and constituting unwarranted
intervention in business.38 A short retelling relevant portion of these
cases is in order. First, in the Manila Prince Hotel case, the historic
Manila Hotel was placed on the bidding block with a foreign firm
submitting the highest bid. The losing Filipino firm matched the
highest bid afterwards but GSIS refused to accept the offer. From
there, the Filipino firm filed a case to the Supreme Court and one of
the grounds of the decision in favor of the petitioner is based on the
Filipino First Policy,39 their bids being equal; the Filipino firm should
have preference to win the bidding. Second, in the Garcia case, the
Supreme Court stopped the BOI from approving the plans of a foreign
firm to amend its registration as a petrochemical producer to change
its plant site from Bataan to Batangas and the raw materials it will use
from Naphtha to Naphtha and/or LPG. In its decision, the Supreme
36 191 SCRA 288 (1990)37 G.R. No. 124293, 20 November 200038 Ballesteros (2002). Judicial Intervention in the Philippines Too Much? 2Arellano
Law and Policy Review 28, p. 2839 Const. art XII, sec. 10, par. 2
In the grant of rights, privileges, and concessions covering the national economy and patrimony,
the State shall give preference to qualified Filipinos. (emphasis added)
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Court cited article XII, section 1 of the Constitution 40 as basis as to
why the plant should be put up in Bataan and aid in the
industrialization of the Naphtha industry there. Lastly, in the JG
Summit case, the Supreme Court invalidated the governments sale of
its shares on a shipyard to a consortium whose majority stake was
owned by foreigners. The Court cited the sixty per centum Filipino
equity provision of the Constitution41 and the repeal of PD 666, which
states that shipyards are not public utilities, 42 as basis for nullifying
the sale.
I have nothing to say on whether the Supreme Court has the
powerto hear these cases since it has given its decision on the merits
of these in the first place, and second is that it is a power given to it by
the Constitution through the expanded judicial power clause.43
40 Const. art. XII, sec. 1, par. 2
The State shall promote industrialization (emphasis added)41 Const. art XII, sec. 11
No franchise, certificate, or any other form of authorization for the operation of a public utility
shall be granted except to citizens of the Philippines or to corporations or associations organized
under the laws of the Philippines, at least sixty per centum of whose capital is owned by such
citizens The participation of foreign investors in the governing body of any public utility
enterprise shall be limited to their proportionate share in its capital, and all the executive andmanaging officers of such corporation or association must be citizens of the Philippines.
(emphasis added)42 Pres. Decree No. 666 (1975), sec. 1, par. d repealed
Registration required but not as Public utility - the business of Constructing and Repairing
vessels or parts thereof shall not be considered a public utility and no Certificate of Public
Conveyance shall be required therefore (emphasis added)43 Const. art VIII, sec. 1, par. 2
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
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According to Fr. Bernas, the use of the word includes means that
power was not an exhaustive listing and the additional clause gives
the courts power to determine grave abuse of discretion by the other
branches of government.44 Given that government instrumentalities
were party-in-interest on the cited cases above (namely GSIS, BOI,
and the Asset Privatization Trust), the Supreme Court has the
Constitutional mandate to determine, and they have determined that
these government instrumentalities committed grave abuses of their
discretion.
In defense of these economic tightrope decisions of the
Supreme Court, Ballesteros (2002) said that the Supreme Court was
only doing its constitutional duty faced with a legal question, the
Court is duty bound to act, notwithstanding the effect it may have on
the economic policies of the government.45 He further adds that
real contributions to the economic growth and general welfare of the
country and the regulation of foreign investments in accordance with
the national goals and priorities are too explicit not to be noticed and
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government. (emphasis added)44 Bernas (2003),supra p. 91945 Ballesteros (2002),supra p. 42
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understood. Hence, the protection of free enterprise must be
understood to be in context of the promotion of the national
interest.46 On the economic side of the argument, these and similar
decisions in the future may give a chilling effect on the entry of
investments to the country. However, business is essentially a risk-
taking venture. Investors will still enter the country given their urge
for profits while the country remains hospitable for investments.47
The interpretation of the Constitution cannot even be more
apparent than what its drafters intended to be Constitutional Norms
of our State, which is a hodge-podge of market-based models and
increased State participation in the economy.48 If this norm is
defined as its role in ensuring freedom of choice, the Rule of Law as a
Law and Economic choice has three possible paths to follow
depending on which legal institution it utilizes. First is as a direct
judicial enforcement of the norms which is more perceptible under the
expanded power of judicial review granted by the Constitution.49
46 Id. p. 4347 Id. p. 3448 Pangalangan (2003). Law and Economic Choice in Philippine Constitutional Law in
Law, Development and Socio-Economic Changes in Asia. Naoyuki Sakumoto et al., editors.
(Institute of Developing Economies, External Trade Organization: Japan). p. 14349 Id., p. 159
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Second is through political and democratic processes.50 An
illustration is the ponencia by then Justice Panganiban denying the
challenges against the Philippine ratification of the WTO agreement.
In disposing the case he said that [trade liberalization and economic
globalization] is a matter that our people should determine in electing
their policy makers Let the people, through their duly authorized
officers, make their free choice.51 Lastly is through power of private
initiative in determining market forces,52 which presupposes that the
freedom of choice is there and hence there is little or no State interest
in infringing certain rights in order to promote the stated norms.
These three therefore can be seen as available avenues for the
fulfillment of the role the Rule of Law has to play to be permissibly
applied for and against differing rights and freedoms depending on the
context of purpose and means. The dynamic is best seen under the
debate of Popular Constitutionalism on one hand and Counter-
Majoritarian theory on the other. Since these would be a new field
altogether, suffice it for me to state that there are three paths or
approaches available for the Rule of Law precisely because one or
two of these can be compromised and the utilization of the remaining
50 Id., p. 16251 Taada v. Angara, 272 SCRA 18 (1997).52 Pangalangan (2003),supra p. 163
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other is the only viable way for the administration of justice. An
illustration would be on fringed groups or minorities who do not have
a voice in popular representation. Counter-marjoritarianism, or
Judicial activism, is what is left available for their protection against
excesses of legislation and/or against their inability to participate in
market choices. In ensuring freedom through these paths, the Rule of
Law and the Legal Institutions can truly partake in the complex and
multi-dimensional world of development.
V. The Role of the Rule Concluding Remarks
This case is decided upon an economic theory
[whether or not I agree] with that theory has nothing
to do with the right of the majority to embody their
opinion in law [A] constitution is not intended to
embody a particular economic theory, whether of
paternalism or of laissez faire. It is made for people of
fundamentally differing views, and the accident of our
finding certain opinion natural and familiar or novel, and
even shocking ought not to conclude our judgment upon
the question whether the statutes embodying them
conflict with the constitution.53
What Justice Holmes said more than a hundred years ago is still
applicable today. Economic theories are good per se but these do not
encompass development as a whole. The Rule of Law must not be
53 Holmes, J., dissenting, in Lochner v. New York, 198 U.S. 47 (1905).
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blinded in determining its role. It must acknowledge not only the
complexity of development but that the Rule of Law itself is a
complex set comprising the gamut of legal institutions. Amartya
Sens capabilities approach to development trumpets development as
freedom, and freedom is the by-product of the rule of law. People are
free to do their wants within the confines of law and society. The
challenge now is the elevation of freedom not as a by-product but as a
partner a Law and Freedom approach. As what the studies have
shown, legal reform advances freedom, and freedom is what Sen
considers as the crucial and constitutive quality of comprehensive
development. Legal reform is thus important on its own; its cause
need not be indirectly established through its contribution to economic
development. Legal reform is, however, also causally interconnected
with other constitutive elements of comprehensive development. A
sound legal system is necessary to advance political and economic
development. The matter is thus complex. In the fulfillment of this
pronounced role of the Rule of Law, it is in accordance with the
national interest that the issue be settled with that of national
development and the causal interdependence vis--vis conceptual
integrity dichotomy of development. An elaboration on the issue of
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judicial intervention, wherein the courts speak as agents for the rule of
law, is needed from the view of the non-legal disaggregated
developments. Thus, there is the availability of three paths in the
fulfillment of the role depending on the context and level of
development. It is thus not a far-fetch assumption that within the
plurality of concerns to the new understanding of the framework for
development, the rule of law has a specific purpose to serve and that
is, to ensure freedom.
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Recommended