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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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