The Powerful Judiciary and Rule of Law in the Philippines

1 THE POWERFUL JUDICIARY AND THE CONCEPT OF RULE OF LAW IN THE PHILIPPINES: Correlations, Consequences and Implications By Joan S. Largo1 Ladies and gentlemen: As I stand here this afternoon--- before such icons as Chief Justice Artemio V. Panganiban and Chief Justice Hilario Davide, Jr., before highly- respected and widely-popular business leaders as the President of the Metrobank Foundation, Mr. Anecito Sobrepena, the President of Cebu Business Club, Mr. Dondi Joseph, the President of Mandaue Chamber of Commerce and Industry, Mr. Philip Tan and the President of Mactan Chamber of Commerce, Mr. Efrain Pelaez, Jr., before the pillars of the legal community in Cebu headed by the Justices and Judges of the various courts in Cebu City, Mandaue and Lapu-lapu City, the President of IBP Cebu City Chapter, Pres. Earl Bonachita and of the IBP Cebu Chapter, Pres. Ferdinand Pepito, before the brilliant minds in the academia, headed by no less than our University President, Fr. Dionisio M. Miranda, SVD, and Vice President for Academic Affairs, Fr. Anthony Salas, SVD, the highly- respected deans of the law schools here in Cebu, their law professors, the Chair, faculty and students of the Department of Political Science of our very own School of Law and Governance, and before you our dearest students--- I am imbued with deep sense of gratitude to the Chairman and members of the Board of Trustees of the Foundation for Liberty and Prosperity for this singular opportunity to explore this less- charted terrain of Rule of Law in the Philippines. Let me state at the outset that the ideas I intend to share with you this afternoon are still provisional, and by no means conclusive or final. This public lecture is but one of the two parts of the CJ Panganiban Professorial Chair grant. I intend that after this, and in the first semester of the next academic year, the select students of USC School of Law and Governance will have a robust debate on just how powerful courts should be as we all work to move this country forward. Let me just digress for a moment and share with you this deep pride that I have of the debating society in our law school. I hope you can forgive me if I am a bit immodest about the fact that USC College of Law is home of many champion debaters, from Beijing Moot Court competition to ANC CVC Law Debates. So this public lecture this afternoon is a prelude, so to speak, to the rousing discourse that my students will make on this topic in the next academic year. 1 Dean, University of San Carlos School of Law and Governance. LLB (USC, 1999, Cum Laude and Class 2 I. Outline of Lecture I. Rule of Law: Concepts and Theories II. Rule of Law in Developed Countries and Selected Countries in Asia III. Rule of Law in the Philippines IV. The Philippine Judiciary V. Judicial Review and Rule of Law VI. The Expanded Certiorari Jurisdiction of Philippine Courts under the 1987 Constitution VII. The Powerful Court: Correlations, Implications, Consequences on the Rule of Law in the Philippines II. Lecture Proper More than two thousand worth of academic literatures on Rule of Law and still, it is a widely-held view that “Rule of Law is an inherently vague term, meaning different things to different people”2, or “The Rule of Law is a historic ideal and appeals to the Rule of Law remain rhetorically powerful. Yet the precise meaning of Rule of Law is perhaps less clear than ever before.”3 Even acknowledged authorities on the subject, such as Randall Peerenboom4, has this to say about Rule of Law: “Rule of Law is an essentially contested concept. It means different things to different people, and has served a wide variety of political agendas”. The concept itself is so widely accepted as to amount to a universal aspiration5, yet, for all its pervasiveness, many find that it to be still an abstraction. 2 Tom Nachbar, Judge Advocate US Army Reserve. 3 Richard Fallon, Jr., Professor of Law, Harvard Law School. 4 Author, Asian Discourses of Rule of Law, Routledge Curzon (2004). 5 A legal analyst once remarked, "[t]he beauty of the 'rule of law' is that it is neutral. No one-the human rights community, the business community, the Chinese leadership- objects to it. Indeed, human rights advocates believe that the rule of law can prevent and remedy human rights abuses; security analysts believe that establishing the rule of law is crucial to rebuilding states plagued by internecine conflict; development experts assert that the rule of law is a critical factor behind economic growth.’ See Mark Ellis, Toward a Common Ground Definition of the Rule of Law Incorporative Substantive Principles of Justice, 72 U. Pitt. L. Rev. 191 (2010), citing Matthew Stephenson, A Trojan Horse in China?, in Promoting the Rule of Law Abroad: In Search of Knowledge 196 (Thomas Carothers ed., 2006). 3 At its core, though, legal analysts and academicians agree that Rule of Law is about government of laws, and not of men. It goes as far back as in the time of Plato who wrote in his work, “The Laws” that--- “[W]here the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.” Aristotle would later on write that--- “. Therefore he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire.6 For all of the irony in the concept of Rule of Law, that of being widely- written (and talked) about yet remaining vague, we all can agree that Rule of Law, though meaning different things to folks of different persuasions, is still Supremacy of the Law, Equality of All before the Law. It is differentiated from Rule by Law where law is considered supreme yet the state and state actors are not bound by it. Nineteenth century theorists7 and modern day organizations such as the World Justice Project8 point, in different degrees and in varying ways, to four fundamental principles of the Rule of Law: First, the government and its officials and agents are accountable under the law; 6 Aristotle, Politics bk iii (Steven Everson ed., Cambridge Univ. Press 1988) cited by Ricardo Gosalbo- Bono in his work, “The Significance of the Rule of Law and Its Implications for the European Union and the United States, 72 U. Pitt. L. Rev. 229 (2010). 7 See for instance the works of Albert Van Dicey and of Friedrich A. Hayek, The Road to Serfdom 72 (U Chicago, 1944) and Friedrich A. Hayek, The Constitution of Liberty 208 (U Chicago, 1960) cited by Todd J. Zywicki, Associate Professor of Law, George Mason University School of Law in Rule of Law, Freedom and Prosperity: A Symposium Sponsored By the Law and Economics Center at George Mason University School of Law: The Rule of Law, Freedom and Prosperity, 10 S. Ct. Econ. Rev. 1 (2002). 8 The World Justice Project® is an independent, non-profit organization… advancing the rule of law worldwide (please see http://worldjusticeproject.org/who-we-are last accessed February 25, 2013, 4:39 PM. 4 Second, the laws are clear, publicized, stable and fair, and protect fundamental rights, including security of persons and property; Third, the process by which laws are enacted, administered and enforced is accessible, fair and efficient; and Fourth, access to justice is provided by competent, independent and ethical adjudicators, attorneys or representatives and judicial officers who are of sufficient numbers, have adequate resources, and reflect the make-up of the community they serve. Thus, it is posited that for whenever we determine whether the Rule of Law is adhered to in a country, we look to the checklist of a law being public, clear and consistent, binding to all state actors, relatively stable, generally prospective and fairly enforced.9 At its core are as such propositions of Constitutionalism, that is, law as a restraint, and Rule-based decision making. To accomplish all these, a legal system must have a machinery that makes laws and which makes laws accessible to everyone. There must also be a body, usually a court and administrative agency, that enforces the law. To the discourse on Rule of Law are thus injected such formal and instrumental mechanisms as Legislature and Courts, and even the principle of separation of powers. However, it was observed that having a law, promulgated by one who is clothed with authority to do so, and made known and applied equally to everyone, cannot be enough. An unjust law--- even if applied to all rich and poor, powerful and powerless alike--- will still invite disobedience. Thus, there is the school of thought that holds that into the discussion on publicity, clarity, efficacy and predictability of laws must be included such values as conceptions of human rights, forms of government and even economic arrangements. These were later on referred to as the thin and thick conceptions of 9 In his work, The ‘Rule of Law’ as a Concept of Constitutional Discourse, 97 Colum. L.

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