January to Volume III December 2014 Issue no. 1

The Official Publication of the Foundation for Liberty and Prosperity

Regulating CONTENTS the Practice of Professions The unpaid creditor vs. the distressed debtor ...... 2 Ateneo School of Law holds second . by Foreigners moot court competition ...... 3 Will the ASEAN Integration help . ar Eastern University institute of Law Dean revitalize our legal system? ...... 4 Andres D. Bautista delivered his first lecture on No right is inherently superior to another right .... 5 FFebruary 7, 2014. His topic entitled “Regulating the Practice of Professions by Foreigners” lengthily weighed the complementary principles of liberty and prosperity in the context of the growing population of expatriates in the country. According to Dean Bautista, “the ability to practice one’s profession is not only a way to earn a living, it is also a means by which an individual may seek fulfillment, attain self-actualization, and contribute to society.” For foreigners in the country, while they are likewise protected by the country’s bill of rights, “there are certain privileges that can be withheld by the State provided that the exclusion of such privilege is neither unreasonable nor arbitrary”. (Photo) From left to right are Dr. Edilberto de Jesus (Former Secretary of Education and FLP Trustee), Atty. Andres D. The lecture attracted law students from host Bautista ( Institute of Law Dean and PCGG FEU , as well as from the law schools of De La Chairman), retired Chief Justice Artemio V. Panganiban (FLP Salle University and Ateneo de Manila University. Chairman), and Mr. Aniceto M. Sobrepeña (Former Secretary of Education and Metrobank Foundation President) during the He co-founded the Master of Business Administration- awarding of honorarium. Juris Doctor dual degree program of De La Salle Graduate School of Business and FEU. He obtained He was previously a Chairman and President his Bachelor of Laws degree from Ateneo Law School of the Philippine Association of Law Schools, (graduating as Class Valedictorian). He obtained his and a partner in an international law firm. He Master of Laws from Harvard Law School. was also a member of Constitutional Reform Dean Bautista was appointed as Chairman of Commissions under previous administrations. the Presidential Commission on Good Government His lecture was met with several (PCGG) in 2010. Prior to his appointment, he served questions from the audience, especially law as Chief Executive Officer of Kuok Group . students under the DLSU-FEU program. •

Subscribe to our Online Newsletter : Libertywww.libpros.com & Prosperity Journal • 1 The Unpaid Creditor vs. the Distressed Debtor Ateneo School of Law

UST Bar Lecture Room Holds Second Moot Court Competition

o cap his second term as Professorial 2B, represented Applicant, the State of Asioya, while Chair Holder, Dean Sedfrey M. Candelaria Abby Castelo and Paolo Gonzales of 2A represented T organized “The 2014 Chief Justice Artemio Respondent, the Kingdom of Raepinosa. The V. Paganiban–Liberty & Prosperity Public Inter- competition ended with 2A bagging Best Memorial national Law Moot Court Competition” from and Overall Winner. Paolo Gonzales won Best March 4 to 5, 2014 at the Justitia Hall of the Ateneo Speaker for the final round and Alyssa Tan, also from UST Law Dean Emeritus Law School, Rockwell Center. The debate, which Amado L. Dimayuga 2A, was awarded Best Speaker for the eliminations. centered on “The State of Asioya v. The Kingdom of Chief Justice Artemio V. Panganiban and wife Elenita Raepinosa: Concerning the Events Related to Dereez handed the plaques and certificates. and Lexseia” as main topic, was conducted in lieu The competition formally closed with Chief of a public lecture by the esteemed Dean with the Justice Panganiban, FLP Chairman, expressing both UST Law Dean Nilo T. Divina active participation of the St. Thomas More: Society his delight over the second round of debates and his of Advocates. hope that more Atenean lawyers will be active in the The championship round (March 5, 2014) international law sphere. hair holder Nilo T. Divina, youngest Dean of Civil Law Dean Amado L. Dimayuga (now Dean was judged by a panelist, with Ambassador Manuel Apart from the Foundation for Liberty and of the University of Santo Tomas Faculty Emeritus), Mr. Benjamin C. Sevilla (President, A. J. Teehankee as panel chair, and Ateneo Society of Prosperity and Metrobank Foundation cohort, the of Civil Law and Founder of DivinaLaw, Philippine Asset Growth One), Atty. Jose A. Barcelon C International Law (ASIL) alumni Atty. Jose Lorenzo event welcomed various members of the Ateneo delivered his first professorial lecture on February (Senior Vice President and Head of Legal Services as well as former ASIL presidents Atty. Pia Alvendia Professional Schools Faculty. 21, 2014 at the UST Bar Lecture Room. Group, United Coconut Planters Bank), Hon. Ramon and Philip Dabao as panel members. Following the event was a symposium on corrup- Aptly titled “The Unpaid Creditor vs The Paul L. Hernando (Justice, Court of Appeals). Lester Flores and Sang Mee Lee, both from tion, which concluded the International Law Week. • Distressed Debtor: Proposals to Balance their Mr. Nicanor L. Torres (Executive Director, Competing Interests”, Dean Divina’s discussion Metrobank Foundation) gave the welcoming provided the public with insights on banking, remarks on behalf of Mr. Aniceto M. Sobrepeña lending, and their judicial relevance. On the one (President, Metrobank Foundation). hand, he emphasized that having fair and efficient Retired Chief Justice Artemio V. Panganiban mechanisms for settling debts can help promote (FLP Chairman) delivered the closing remarks. the recovery of stranded money, and eventually Other retired and incumbent justices and improve commerce. He stressed however, on the judges, prominent lawyers, banking and finance other hand, that oppressive processes of freeing professionals, and UST law students also attended. distressed debtors from the burden of paying debts The event was co-organized by the Philippine when they are incapable of doing or forcing them Association of Law Schools. Panel of judges chaired by Ambassador Manuel A.J. Teehankee Dean Sedfrey M. Candelaria receives honorarium to pay based on unreasonable terms can discourage Dean Divina obtained his Bachelor of Arts borrowing, which in turn discourages free enterprise in Behavioral Science (Cum Laude) and Bachelor and economic growth. of Laws (Magna Cum Laude and Valedictorian) Dean Divina reminded, “Creditor-debtor both from the University of Santo Tomas. Prior to relationship characterized by fairness and equity founding the Divina and Uy Law Offices, he served leads to efficient and responsible use of credit as Corporate Secretary of the Philippine Charity which in turn promotes economic development and Sweepstakes Office (PCSO), Vice President of prosperity.” Equitable Bank, Executive Vice President/Corporate His lecture was witnessed by prominent Secretary and General Counsel of Equitable PCI guests including Rev. Fr. Isidro C. Abaño, O.P. Bank (now Banco De Oro). (Regent, UST Faculty of Civil Law), Rev. Fr. Richard Dean Divina is the Author of the “Handbook G. Ang, O.P. (UST Vice-Rector), former UST Faculty on Commercial Law”. • Justitia Hall, Ateneo Law School

2 • Liberty & Prosperity Journal Liberty & Prosperity Journal • 3 Will the ASEAN Integration No Right is inherently superior help revitalize our legal system? to another Right

ean Joan Sarausos-Largo weighed into Dean Largo highlighted the importance of illiman University College of Law Dean because men have made laws. On the contrary, it was current discussions regarding the ASEAN initiating a national conversation regarding the Mikhail Lee L. Maxino’s “Right to Life, Liberty, that life, liberty and property that existed beforehand DIntegration 2015, and expounded on how competencies of the Filipino lawyer, not only in the S Property: A Seamless Trilogy to Prosperity” that caused men to make laws in the first place.” this regionalization and collective identity building light of the ASEAN integration but also in keeping up public lecture was the first FLP-sponsored event held He capped his lecture with a statement in process can ideally foster liberty and prosperity with the global trends of the 21st century. While the in Mindanao. A Master of Laws in Environmental reference to the book of Genesis: “In the beginning, under the rule of law. Delivering a speech in Cebu changing currents may bring forth new perspectives Law (Dalhousie University, Canada) graduate and God created property, then humans, then bestowed City on September 11, 2014 , the University of San as well as cross-cultural transformations, Dean environmental law expert, Dean Maxino organized upon them the freedom to use and dominate Carlos (USC) School of Law and Governance Dean Largo strongly emphasized that all the more new his lecture on November 26, 2014—a year after the property, then He exhorted them to multiply, be captivated an audience comprised of USC law policies must remain evidence-based and constantly super typhoon Haiyan/Yolanda devastated the fruitful, be prosperous. Property, Life, Liberty – one students and faculty, as well as esteemed guests informed by empirical data and critical thought. south of the Philippines. seamless Right on the road to Prosperity.” including retired Chief Justice Hilario G. Davide Jr., Equally important is the revitalization of the Dean Maxino’s lecture threshed out the “It is curious that God created property first President Aniceto M. Sobrepeña of the Metro- legal education. Her lecture also gave sound insights principle of indivisibility of human rights, and put before humans” he added, “He designed property bank Foundation, FLP on how to nurture forward the main to be humanity’s President Evelyn T. new lawyers who will argument that “no source of food, even Dumdum, Department ensure that the Filipino right is inherently source of life. It is also of Trade and Industry nation alongside superior to another; curious to note that of (DTI) Representative other Southeast Asian they are all of equal the values that both Glenda Reyes, USC nations will mutually importance.” In other the constitutions of President Fr. Dionisio benefit from the words, a hierarchy the and M. Miranda, SVD, ASEAN’s economic of rights would only the Philippines so Court of Appeals Cebu and cultural growth. lead to “prioritized sacredly protect, it is Station Executive Named as an protections”. Thus, the only property--the two Justice Gabriel T. Outstanding Graduate Silliman Dean offered being life and liberty-- Ingles, Madame of the 500-year old guiding principles: (1) that people cannot be Justice Portia Alino- University of San one must respect the deprived of without Hormachuelos (newly- Carlos, Cebu, Dean importance of rights due process of law and elected University of Largo graduated Class involved; (2) one must just compensation.” (Photo) FLP’s newly-appointed President Evelyn T. Dumdum awarding (Photo) Dean Mikhail Lee L. Maxino responds to questions from the audience the Visayas Gullas the honorarium to Dean Joan Sarausos-Largo, on her second term as Valedictorian and acknowledge the Among the Law School Dean), recipient of the Professorial Chair on Liberty and Prosperity. Dean Largo Magna Cum Laude in limitation of rights; (3) dignitaries present members of the first conducted a lecture (entitled “The Powerful Judiciary and the Concept Political Science, and one must look at the factor that limits a right (only were Retired Chief Justice Artemio V. Panganiban of Rule of Law in the Philippines”) and a debate (USC versus UST) last and second level year, in fullfillment of her first term as professorial chair holder. Cum Laude in Law, actual burdens on rights trigger conflict); (4) one must and Mr. Nicanor L. Torres, Jr., Executive Director of courts, officers of the on top of being the understand that the core of a right is more protected the Metrobank Foundation. Integrated Bar of the Valedictorian of her than its periphery; and (5) one must consider rights Dean Maxino was instrumental in the Philippines (IBP), and deans of various law colleges Law Class. In 2000, she passed the Bar Examinations within the the framework of other principles, such establishment of the Dr. Center for and universities in the Visayas region. and was at the top 20 of successful examinees where as social justice. Law and Development, an active social-advocacy Her lecture entitled “A Glass Half Full: only sixteen (16%) percent of all candidates passed. Ultimately, the goal is to curb the risk of arm, of the College of Law. ASEAN Integration 2015 and the Imperative for At age 28, she was appointed Assistant Law Dean enabling a select few— the rich, the powerful, or the He has also been extensively involved in critical Reforms in the Legal Profession and the Legal of her Alma Mater’s College of Law. She is the privileged—to forcefully invoke their liberty and development projects in the areas of marine and Education in the Philippines” served as a timely youngest professor in the College to have occupied fundamental rights to legitimize their actions that costal resources and protected areas management, reminder that the legal and judicial system must take the administrative post. marginalize the less privileged, especially in terms funded by international organizations, such the opportunities the ASEAN Economic Community Engaged in trial and appellate practice, Dean of socio-economic rights. as the Asian Development Bank (ADB) and will open when its ten member states open their Largo is a partner at the Florido Largo & Acuña Law Quoting Frederick Bastiat, Dean Maxino the Deutsche Gesellschaft für Internationale gates in the next 5 years. Offices (Cebu). • pointed out that: “Life, liberty and property do not exist Zusammenarbeit (GIZ). •

4 • Liberty & Prosperity Journal Liberty & Prosperity Journal • 5 Safeguard Liberty, Conquer Poverty, It was so successful that the prior my retirement. Led by the Chief Justices of “ Canada, Russia, France and several others, over 300 World Bank uploaded it in its website as a jurists, lawyers and law professors from all over Share Prosperity the world attended this conference. They signed a model for all developing countries applying for Manila Declaration urging the Philippines to lead Address delivered by retired Chief Justice Artemio V. Panganiban during the 4th INTEGRITY SUMMIT World Bank assistance for judicial reforms.” in reconvening the Global Forum in other countries held on September 19, 2014 at the Dusit Thani Hotel, Makati City, sponsored by the Makati Business on a rotating basis. Canadian Chief Justice Beverley Club and the European Chamber of Commerce and Industry. McLacklin suggested I add “Under the Rule of Law” developing countries applying for World Bank to my judicial philosophy, a suggestion I happily assistance for judicial reforms. accepted. ay I tell you the tale of a judge who (ECCP) to sponsor this “Integrity Initiative” today. During my term as Chief Justice, I continued Unfortunately, my successors in office did not thought he had a reputation for fairness The first joke shows the wrong way to level the the APJR with emphasis on what I call the ACID continue both Chief Justice Davide’s and my judicial Mand transparency. Before the trial in a case playing field and the second shows the wrong way problems that corrode justice in our country. Thus, reform initiatives. Consequently, the international began, he summoned the lawyers of the parties to to legalize a bribe. upon assuming office, I announced my “Vision and aid agencies discontinued their assistance. The his chambers. Ladies and gentlemen, judges will not be Mission Statement” as follows: World Bank deleted the APJR from its website. He calmly told them, “Compañeros, both of bribed unless clients inveigle their lawyers to go “I vow to lead a judiciary characterized by Realizing this, I pressed on, even in you surreptitiously bribed me. You, counsel for the beyond the outer limits of advocacy and soar to four Ins: Integrity, Independence, Industry and retirement, with my judicial philosophy of liberty plaintiff, gave me P250,000, while you, counsel for the stratosphere of corruption and malevolence. At Intelligence — one that is morally courageous and prosperity under the rule of law. Using my the defendant, sent me P200,000. As an evenhanded times, lawyers are told by unscrupulous clients, “I to resist influence, interference, indifference and retirement pay, I organized the Foundation for and transparent judge, I will not allow anyone of do not care whether you know the law. My question insolence. I envision a judiciary that is impervious Liberty and Prosperity, or FLP, to celebrate my you to unduly influence me. So, I am returning is: Do you know the judge?” Remember, there are no to the plague of “ships” — kinship, relationship, 75th birthday in December 2011. With the help P50,000 to you counsel for the plaintiff. Now. after bribe-takers, when there are no bribe-givers. friendship and fellowship. of the Metro Pacific Investment Corporation and I have leveled the playing field, both of you can I could really end my address now for I have “I pledge to continue and strengthen the the Metrobank Foundation, the FLP – as its initial expect equal treatment from me.” already demonstrated how the business community Supreme Court’s on-going Action Program for project – created and funded 10 professorial chairs in Let me also tell you of the tale of another judge can stop corruption. However, as your guest Judicial Reforms (APJR) with special focus on what nine leading law schools and one in the Philippine known for his strictness. One day, he was visited at speaker, I have been tasked to bore you with a long I call the ACID problems that corrode justice in our Judicial Academy. I thought that the first vital step his home by a practicing lawyer. “Compañero,” the peroration on how to properly level the playing field country; namely, (1) limited Access to justice by in inculcating the value of liberty and prosperity is magistrate boomed, “Why are you here? Don’t you and how to properly solve corruption, and help our the poor; (2) Corruption; (3) Incompetence, and (4) through education. know it is unethical for a lawyer to speak with a nation prosper through judicial reforms. Delay in the delivery of quality justice. Fortunately, current Chief Justice Maria judge outside the courtroom?” “Yes, Your Honor, I “I look for competent and ethical lawyers Lourdes P.A. Sereno supported FLP’s initiative am aware of that. But I did not come here to speak Past Reform Programs who are responsible, dependable, and morally and keynoted the launching of the Chief Justice with you about my pending case. I came here to upright; and who courageously uphold truth and Panganiban Professorial Chairs Program on sell you a brand new Mercedes Benz that is now Whenever judicial reform is the topic of discussion, justice above everything else. September 18, 2012. She also saw the need for judicial parked on your driveway,” meekly explained the I am always reminded of the very comprehensive “I shall grant maximum financial and fringe reforms along the lines of the APJR and ACID, but lawyer. After peeping at a window to view the car, “Action Program for Judicial Reform,” or APJR, benefits to our 26,000 employees nationwide from with her own updates. I would advise the Integrity the judge retorted, “Ah, you came as a car salesman, started by my esteemed predecessor, Chief Justice whom, in turn, I ask for three things: (1) Dedication Initiative to assist the Supreme Court in crafting not as a lawyer. How much is the car?” To which Hilario G. Davide Jr. in 1998. to duty, (2) Honesty in every way, and (3) full Loyalty its full program. Already , the World Bank and the the enterprising lawyer whispered, “P1,000, Your The APJR was supported not only by the to the judiciary, or DHL Asian Development Bank have shown interest in Honor.” The judge smiled and said, “In that case, I’ll Philippine government but also by international “All the foregoing visions and objectives helping her. buy two, one for me and one for my wife.” institutions like the World Bank, the UN Development must lead to the loftier goals of safeguarding the These stories are of course anecdotal and Program and the Asian Development Bank, as well liberty and nurturing the prosperity of our people. Brief Political and Constitutional History meant to be jokes to cheer you up. Laughable these as all major national aid agencies, like those of the “The twin beacons of Liberty and Prosperity jokes may be; nonetheless, they demonstrate some United States, Canada, , Australia, Britain and constitute my core judicial philosophy.” Indeed, judicial reforms are needed to better of the devilish games and witchcraft that may have the Netherlands. To promote this philosophy, I called a compensate judges, assure their independence, impelled the Makati Business Club (MBC) and the It was so successful that the World Bank Global Forum on Liberty and Prosperity in Makati prevent corruption, provide more dignified European Chamber of Commerce of the Philippines uploaded it in its website as a model for all on October 18-20, 2006 as my valedictory project courtrooms, speed up justice and institute other

6 • Liberty & Prosperity Journal Liberty & Prosperity Journal • 7 Many other prerogatives the be allowed in the Philippines except under a treaty (May 2, 1997), on the ground that the WTO Treaty Our present (1987) Constitution was prepared by Supreme Court was given, but duly concurred in by the Senate…” allegedly violated the “flagship provisions” of the venerable“ men and women who experienced the repressions and the voiding of gravely abusive Indeed, the Supreme Court can be sensitive Constitution mandating economic nationalism. This acts of its co-equal branches made to the needs of our time and calibrate the use of its novel case was assigned to me for study in 1995 torments of . Consequently, the Constitution they our Court the most powerful awesome powers to promote the general welfare. when I entered the Supreme Court. tribunal in the world. Its power Historically, it has been faithful to the call to In upholding the WTO Treaty, my drafted made sure that no president, however well-intentioned is limited only by the wisdom preserve and protect our people from tyranny and unanimously-concurred decision argued: “While and self-restraint of the justices oppression, whether from colonizers or from native the Constitution mandates a bias in favor of Filipino and patriotic, could ever install authoritarian rule again...” themselves. authoritarian rulers. goods, services, labor and enterprises, it recognizes Overall, the judiciary, in my May I, however, point out that our the need for business exchange with the rest of the systemic, physical and internal changes. But, today, humble view, has performed well in safeguarding Constitution was promulgated in 1987, at a time when world on the bases of equality and reciprocity, and let me take up another aspect of judicial reform, that the liberty of our people.2 Moreover, if shown to the prevailing economic mantra was the protection limits protection of Filipino enterprises only against is, to refocus the judicial mindset on the economic be mistaken, it corrects itself. When convinced by of Filipino enterprises and services, summed up in foreign competition and trade practices that are development of our country and thereby help incontrovertible facts that the Priority Development the nationalistic slogan, “Filipino First.” Thus, many unfair.”5 conquer poverty and share prosperity. Let me start Assistance Fund, or PDAF, was evil, it reversed its industries, businesses, services and professions were May I emphasize that in embracing with a little background on our intermixing political unanimous decision in LAMP vs Sec. of Budget reserved completely or partially for Filipino citizens. globalization and the WTO, our country was in and constitutional history. (Apr. 24, 2012) upholding the pork barrel and struck At that time also, the government was deeply fact pursuing its national interest. We recognized Since our independence on June 12, 1898 and it down a year later also unanimously in Belgica entrenched in business. It owned and operated the stark reality that the world has become a global the founding of the Supreme Court in 1901, our people vs Exec. Sec. (Nov. 10, 2013). It has also carefully corporations that produced basic necessities like village where no country can progress in isolation. had always aspired for political independence. So, struck down some “acts and practices under the steel. water, electricity, telephone service, petroleum, Even socialist countries like Russia and have all our basic laws – from the Malolos Constitution to Disbursement Acceleration Program” or DAP, but coconut products, sugar, etc. The result, as we all joined WTO. Only hermit kingdoms and totalitarian the Philippine Bill of 1902, to the Tydings-McDuffie not the DAP itself. know now, was a disaster for the economy: not regimes like North have not entered WTO. Act, to the 1935 Constitution and to the 1987 Charter, only were the government firms grossly inefficient; As a consequence, their economy stagnated in self- the emphasis had always been the protection of Sensitive to Public Welfare they also lost heavily and became a monstrous damning isolation. To build our nation, we must political freedoms. burden that increased our foreign indebtedness. indeed look at the lessons of the past, but more Our present (1987) Constitution was prepared It has also shown sensitivity to the Herculean The National Power Corporation alone lost almost importantly, we must live with the realities of the by venerable men and women who experienced search for lasting peace in our country. On the a trillion pesos and yet failed to produce enough present as we plan for a better future. the repressions and torments of martial law. day the Memorandum of Agreement on Ancient electricity resulting in rotating countrywide black I took the occasion in the WTO case, which Consequently, the Constitution they drafted made Domain (MOA-AD) was to be signed by the Arroyo outs in the early 1990’s.3 was promulgated in 1997 when I was just two years sure that no president, however well-intentioned administration and the Moro Islamic Liberation in the Court, to proclaim my core legal philosophy of and patriotic, could ever install authoritarian rule Front, the Supreme Court promptly issued a Abandoning self-centeredness “Liberty and Prosperity.” I believe that in litigations again. Temporary Restraining Order (TRO). I think this was involving civil liberties, the scales of justice should To achieve this goal, the framers took away because the MOA-AD was sprung on our people, However, soon after our new Constitution was ratified weigh heavily against the government and in favor much of the powers of the presidency, strengthened without any transparency and without exposing the in 1987, the world changed and the protectionist of the people, pursuant to the doctrine of strict Congress and the independent agencies, and most preliminary steps to public scrutiny. theories of economic development were abandoned scrutiny. But in matters affecting the economy and significant, gave the judiciary over-arching powers In contrast, though the Framework in most parts of the world. to prevent and subdue abuses and excesses of the Agreement on the Bangsamoro (FAB) and its four And the era of liberalization, president and the legislature. However, soon after our new Constitution was ratified in annexes contain basically the same provisions as the globalization, deregulation Accordingly, our Constitution gave the “ MOA-AD, no TRO was issued. The Court merely and privatization bloomed 1987, the world changed and the protectionist theories of economic judiciary not just the power but the duty to strike required a routine comment from the respondents. I when the World Trade down “grave abuse of discretion… on the part of think this is because the Aquino administration was Organization (WTO) was development were abandoned in most parts of the world. And the any branch or instrumentality of the Government.” transparent in its peace process. born on January 1, 1995.4 Grave abuse was not defined by the Charter; instead, era of liberalization, globalization, deregulation and privatization Also, no TRO was issued on the petitions The Philippine it gave the Supreme Court wide latitude to flesh assailing the Enhanced Defense Cooperation adherence to the WTO was out its meaning, scope and extent, which made the bloomed when the World Trade Organization (WTO) was Agreement despite the constitutional provision that challenged in the Supreme power even more awesome.1 “foreign military bases, troops, or facilities shall not Court in Tanada vs. Angara born on January 1, 1995.”

8 • Liberty & Prosperity Journal Liberty & Prosperity Journal • 9 the prosperity of our people, courts – in the absence originalists interpret according to the original intent With this mindset, our Supreme Court can the bidding, the Manila Hotel, constituted a part of the of grave abuse of discretion – must defer to the of the framers, regardless of the dire consequences use its vast powers to speed up justice, minimize “national patrimony,” and should thus be awarded to a losing Filipino company that matched the price of the Executive and Legislative Branches of government, on current and future events. They rely on “dura technicalities and make meaningful distinctions winning foreign bidder, pursuant to Section 10 of Article in accordance with the principle of deferential lex sed lex.” Their self-imposed duty is “to apply to promote the general welfare. It can uphold our XII of the Constitution that states: “In the grant of rights, interpretation of laws and executive issuances. The laws faithfully and desist from engaging in socio- people’s paramount security, peace and economic privileges, and concessions covering the national economy responsibility for promoting and developing the economic or political experimentations,” which they wellbeing. Indeed, with the prudent use of its and patrimony, the State shall give preference to qualified .” For the record, I was one of the dissenters in that country’s economy rests primarily on its political denounce as “judicial legislation.” awesome powers, the Court can safeguard liberty decision. leaders. Should they fail in this duty, our people can On the other hand, the liberals or progressives and at the same time nurture prosperity. replace them during periodic elections. believe in a living Constitution; one that grows To sum up, I call on all of you to support the 4 The WTO ushered, to quote the Supreme Court in Tanada vs I also believe in private enterprise as the with time, solves the vagaries of the present and reform initiatives now being crafted by the Supreme Angara (May 2, 1997), “a new borderless world of business by sweeping away as mere historical relics the heretofore engine of economic growth. Thus, government must anticipates the needs of the future. I belong to this Court as I speak. And equally important, please help traditional modes of promoting and protecting national promote entrepreneurship and encourage private latter group who believe that jurists are not mere me and the Foundation for Liberty and Prosperity to economies like tariffs, export subsidies, import quotas, capital. At the same time, the government has the social technicians and legal automatons. Rather, reshape the mind-set of our judiciary and the legal quantitative restrictions, tax exemptions and currency duty of overseeing the fair and equitable distribution they are social engineers who courageously fix their profession not only to safeguard the liberty of our controls. Finding market niches and becoming the best in specific industries in a market-driven and export-oriented of private wealth to all our people, especially the poor gaze on the underlying principles and overarching people but also to help conquer poverty and share global scenario (replaced) age-old ‘beggar-thy-neighbor’ and marginalized. The government, likewise, has aspirations of the Constitution to nurture a free and prosperity. Let us join hands and work together to policies that unilaterally protected weak and inefficient the responsibility of enlarging the areas of economic prosperous nation. secure justice and jobs; freedom and food; peace domestic producers of goods and services.” growth to future generations of Filipinos. Thus, the The United States Supreme Court has been and prosperity; ethics and economics; democracy 5 “In other words, the Constitution did not intend to pursue economic pie must not only be fairly divided, it struggling for a long time on these differing schools and development; liberty and prosperity. Indeed, an isolationist policy. It did not shut out foreign investments, must also be enlarged so that more benefits could of constitutional construction. During my term as liberty and prosperity must always go together; one goods and services in the development of the Philippine be spread to more people under the social justice Chief Justice, I visited US Justice Antonin Scalia, said is useless without the other. economy. While the Constitution does not encourage the principle of giving more law to those who have less to be the leader of the originalists in the US Court. I unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either. It fact, it in life. was inviting him to speak before the aforementioned Maraming salamat po. • allows an exchange on the basis of equality and reciprocity, Indeed, when it wants to, our Supreme Court Global Forum on Liberty and Prosperity that our frowning only on foreign competition that is unfair.” ______is able to transcend obsolete economic barriers by Supreme Court was sponsoring on October 18-20, 6 progressively citing countervailing constitutional 2006 just prior to my retirement. 1 Clearly, the Constitution knighted the judiciary as the However, there are instances too when the Supreme guardian of liberty and the nemesis of authoritarian rule. Court refused to be creative and became restrictive in provisions as it did in the WTO case, or by thinking He smiled and said, “Mr. Chief Justice, you Even the United States, from where we copied our political interpreting the economic provisions of the Constitution. more creatively, as it did more recently in Initiatives do not really want me there. I would be useless in system, has not endowed its judiciary with such plenary One recent example is Gamboa vs Teves (June 28, 2011 per for Dialogue vs PSALM (Oct. 9, 2012 per Justice the Forum because I do not believe in international authority. Justice Antonio T. Carpio), which held that the 40 percent Martin S. Villarama Jr.), which ruled that water law. When I joined the US Supreme Court, I swore constitutional limitation on foreign ownership in public 2 To prevent a repetition of the human rights abuses during utilities, like telephones, should be computed only on the flowing in a river is a natural resource reserved to defend the US Constitution and nothing else. And martial law, our Constitution requires arresting policemen “shares of stock entitled to vote in the election of directors… for Filipinos. However, once “appropriated” by a I interpret it according to the original intent of our to verbally advise arrestees of their “Miranda” rights: not to the to the total outstanding capital stock,” which may qualified local company and “collected in a dam,” it framers, which did not include international law. “the right to remain silent and to have competent and include non-voting shares. becomes private in character and may thereafter be Please see my friend, Justice Anthony Kennedy. independent counsel preferably of his own choice. If the In several speeches, I have discussed this person cannot afford the services of counsel, he must be controversial decision, but for today, let me just say that used by a Korean firm to generate electricity.6 I am sure he will welcome an opportunity to provided with one. These rights cannot be waived except in when this nationalistic provision was included in the 1935 Because of the need to attract investors, there expound on his international philosophies and writing and in the presence of counsel.” Constitution and until now under the present Constitution, have been proposals to amend the Constitution. ideas.” True enough, when I saw Justice Kennedy The Miranda rights were invented by the US the Department of Justice and the Securities and Exchange While Charter Change would be the more definitive later, he agreed to speak at our Global Forum even Supreme Court; they are not found in the text of the US Commission have interpreted the constitutional provision Constitution. But our framers wrote them into our Charter. to refer to the entire capital stock, not just to the voting and permanent solution, in the meantime, a more if via teleconferencing only, because he had already So, too, evidence obtained illegally and confessions shares. progressive and creative interpretation would do. committed to be in another venue on those dates. extracted by force or false pretense cannot be used against On this basis, many foreign investors have brought My point is: the Constitution should be the accused. For this reason, many have been acquitted, even their capital here. I think it would not be fair to penalize Two Ways of Interpreting the Constitution interpreted according to the evolving needs of our if in fact guilty, because of the actual or feigned violation of them or to deprive them of their investments now under the these rights. new Supreme Court ruling. They have relied in good faith people who ratified it, not rigidly according to its on the representation of our government that they were not Before leaving the subject, let me just say letter. It is a living instrument that can be construed to 3 The nationalistic fervor was used (some say “misused’) violating the Constitution in making their investments. To that there are at least two ways of interpreting fight new perplexities unknown to or unanticipated when the Supreme Court, in Manila Prince vs. GSIS (Feb. be fair, and to retain the trust of foreign investors, I think the or construing constitutions. The textualists or by its framers. 3, 1997), voided a public auction already won by a foreign decision should be made prospective, and investors should company, on the ground that purportedly, the subject of be given time to divest or to adjust to the new decision.

10 • Liberty & Prosperity Journal Liberty & Prosperity Journal • 11 New Batch of Officers

he FLP continues to serve its purpose with October 2011 by its first batch of officers, namely a new batch of officers, namely Chief Justice Artemio V. Panganiban (Chairman of the Board), Maria TArtemio V. Panganiban (Chairman of the Elena P. Yaptangco (President), Evelyn T. Dumdum Board), Evelyn T. Dumdum (President), Rebecca (Executive Vice President), Elenita C. Panganiban G. Felix (Treasurer), and Joel Emerson J. Gregorio (Treasurer), and Joel Emerson J. Gregorio (Corporate (Corporate Secretary). In addition, the chairs of the Secretary). Elected chair of the various standing various standing committees remain—Artemio V. committees were Artemio V. Panganiban (Executive Panganiban (Executive Committee), Washington Z. Committee), Washington Z. Sycip (Finance), Hilario Sycip (Finance Committee), Hilario G. Davide Jr. G. Davide Jr. (Governance), and Edilberto C. De (Governance Committee), and Edilberto C. De Jesus Jesus (Education). (Education Committee). The Foundation has yet to realize its other During the Annual Membership and proposed projects, such as: (1) curricula on liberty Organizational Meeting held on July 21, 2014, Maria and prosperity under the rule of law; (2) legal Elena P. Yaptangco cordially left the FLP’s Board assistance, legal research and legal aid; (3) educational of Trustees and her post as President. She was scholarships and fellowships; and (5) a Center for replaced by Evelyn T. Dumdum in both capacities. Liberty and Prosperity. The Board of Trustees and Replaced by Rebecca G. Felix as Treasurer, Elenita Officers are hopeful that the year 2014, which marks C. Panganiban remains in the Board of Trustees. The the third anniversary of the Foundation, is ripe for position of Executive Vice President, formerly held a Center for Liberty and Prosperity, which would by Evelyn T. Dumdum, is now vacant. enable its secretariat to implement and accomplish The Foundation was formally organized in more projects.

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FLP Board of Trustees FLP Officers Editorial team Artemio V. Panganiban Elenita C. Panganiban Artemio V. Panganiban Chairman of the Board Member, Board of Trustees Chairman, Joel Emerson J. Gregorio Executive Committee Editor-In-Chief Hilario G. Davide Jr. Evelyn T. Dumdum Chairman, Member, Board of Trustees Evelyn T. Dumdum Kristian Jeff C. Agustin Governance Committee President Associate Editor Maria Theresa P. Mañalac Layout Artist Washington Z. Sycip Member, Board of Trustees Rebecca G. Felix Chairman, Treasurer Finance Committee Joel Emerson J. Gregorio Member, Board of Trustees Joel Emerson J. Gregorio Edilberto C. De Jesus Corporate Secretary Chairman, Jennifer J. Manalili Education Committee Member, Board of Trustees

Published by Foundation for Liberty and Prosperity, Inc. (FLPI) All rights reserved. Copyright © 2014 12 • Liberty & Prosperity Journal 1203 Acacia, Dasmarinas Village, Makati City • Telephone: (632) 843-2654 • Telefax: (632) 843-9083