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Speech delivered by Chief Justice Maria Lourdes P. A. Sereno during the Liberty and Prosperity: Chief Justice Artemio V. Panganiban's Professorial Chair Lecture on September 18, 2012 at the Metrobank Auditorium, Makati City

Thank you, gentlemen, friends, and ladies. Please take your seats.

It is humbling to hear those words coming from a great man – Chief Justice

Artemio Panganiban. He has put his stake a lot on his expectations on me. He has

basically endorsed to this generation and future generations the success in

reforming the judiciary. Indeed, the effect of that is to goad me even more knowing

that I am easily goaded by him on many occasions. So I thank you, Chief Justice

Panganiban. His short vignettes about our encounters, including my sessions with

him, private though they were, is a clue to our Solicitor General Francis Jardeleza

that perhaps the Republic owes him also a little consultancy fee for the help that he

has given to the team.

Indeed, I am honored to be here.

Chief Justice Panganiban; Chief Justice (Hilario G.) Davide (Jr.); Former

President Fidel Ramos; Senator Edgardo Angara; (Senator) Franklin Drilon: Former

Prime Minister Cesar Virata, who I saw in the audience; Associate Justices

(Mariano) del Castillo and Estella Bernabe; incumbent justices of our appellate

courts, retired Justices (Vicente V.) Mendoza, (Bernardo P.) Pardo, (Philippine

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Judicial Academy Chancellor retired Supreme Court Justice Adolfo S.) Azcuna, and

(Eduardo Antonio B.) Nachura, the latter two of whom are this afternoon's awardees;

cabinet secretaries; SolGen Jardeleza has been mentioned; SEC Chairperson (Teresita

J.) Herbosa; Your Excellencies of the Diplomatic Corps; the development community,

indeed the most responsible names in Philippine business; awardees; (University of

the Philippines) President (Alfredo E.) Pascual; colleagues from the academe; law

school deans; all of you, distinguished friends.

It is an honor to be here. And I have been invited to this formal launch to give

a small talk and it is really with such an interest that I was contemplating what I was

to say to Chief Justice Panganiban. You see, one of his key talents is provoking people

to respond in a way that catches them. So I was telling him earlier, Chief Justice

Panganiban, I know you would want me to be caught in the vice of my own mouth if

I freely respond to your judicial philosophy. So rather than be very free with my

thoughts, I said that this afternoon, I will again exercise my policy of dignified

silence. (But I will be free on some of the more fundamental principles that I think

that he, I, and the rest of the judiciary share. So I wish to begin by thanking and

acknowledging the President of the Foundation Mrs. (Maria Elena Panganiban-)

Yaptangco, is it correct? And Dr. George Ty and the Ty family of the Metrobank

Group and all the other sponsors of the Foundation. As I was telling him, you Chief

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Justice Panganiban, have brought to the front and center the legal academe and have

given them a place in the heart of the business community. This is something that I

see that is a pioneering path for the academe to not just give their lectures in

auditoriums filled with students who are forced to listen because their attendances

are being checked. But rather you are going to deliver your lectures awardees before

the business community who is eager to find out how you are contemplating the

twin concepts of liberty and prosperity.

Now, one thing I have discovered since I joined the judiciary is that while I

have a lot of freedom in the way I elucidate my opinions, whether it is the majority

ponencia, it is a concurring opinion, it is a dissent, it is a vote on a pending incident

before the Supreme Court, I am constrained to understand the parameters of my

office prevent me from being completely free in other fora in order that I will gain

other freedom when a justiciable dispute is before us.

So I thought that I can no longer stir as much controversy in an academic

symposium or in a public gathering such as this, but rather the robustness of my

ideas will be tested by the kind of debates that we have in the Supreme Court. And

there is both pleasure in the freedom that a free and untrammeled debate in our En

Banc deliberations give me and the sadness that with respect to the rest of the

population, I have to be prudent, in order to prevent me from being forced to inhibit

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from already taking a foreclosed position.

But this is what I understand about the Foundation. The very bright idea of

Chief Justice Panganiban. I think from my point of view, the Foundation and the

projects that it has launched aim to enhance the dialogue on the very complex

relationship between an individual's right to liberty and the concomitant value of

prosperity under the Rule of Law. In other words, does it raise the debate on what is

more important to people: bread or freedom? Or what will a person be more willing

to give up, prosperity, in order that he be more free or justice and freedom at all cost

despite material scarcity? Are there conflicting values? Must one be pursued ahead

of the other? Must one be sacrificed in temporalities in favor of advancing the

other?

There are schools of thought where individual rights and freedoms are

believed to be necessary subordinate to the actions the state must take to achieve

economic growth. These are the schools of thought that are present even in East

Asia which criticizes the Philippines for possibly inordinately giving more premium

to individual liberties than the upliftment of the common prosperity of the people.

We have heard many incidents which blame our people's vigorous pursuit of

the various kinds of political and civil freedoms as being detrimental to a more

orderly society. On the other hand, there are those who believe that the safeguarding

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of liberty must precede efforts towards the attainment of prosperity. While it is true

that that more modern developmental thoughts believe that sustained economic

growth can only be had in a regime where the Rule of Law is consistently observed,

there are those who believe that the Rule of Law includes the subordination of

individual rights in favor of community prosperity.

Now, these are, in my view, partly academic, but also partly necessitating a

response from the body politic. It is partly academic because whether we like it or

not, the 1987 Constitution has already identified goals of both liberty and prosperity

and in the view of the 1987 Constitution, they are not competing in terms of priority

nor in terms of ordinal attention to be given them. Rather, the state has the duty to

pursue both of them. So it only becomes the question of which is more important

becomes a live issue when there is an attempt to tweak the Constitution in whatever

form it sought to be tweaked in order that prioritization may become more

categorical – whether individual liberties should stand ahead of economic

prosperity or it is the other way around. Yet, at the same time, even if we set aside

the move to change the Constitution, it is still a live issue. Why? Because every

politician in the Philippines must try to achieve both. Because the EDSA Revolution

in 1986 and the more tame forms of social and political revolutions that have taken

place thereafter have shown that the Filipino people are not willing to live with

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either with their individual liberties nor are they willing to live in a state of sinking

economic and material morass. So it is a tall job. Both must be pursued.

Thus, Chief Justice Panganiban takes the view that rather than one

superseding or being subordinate to the other, the twin concepts or goals of liberty

and prosperity are mutually interdependent and inclusive. In his view, liberty must

encompass all the freedoms afforded by prosperity, while prosperity includes liberty

within its purview, specially the liberty to strive for a good life. Thus, he names

liberty and prosperity twin beacons for the judiciary.

The advocacy of these twin beacons of justice is of vital importance to our

nation. It is only in a just society that the economy can thrive. At the same time, an

equitable economic system is a cornerstone in building a just society. If our

institutions fail to promote an equitable allocation of resources for our citizens, if

access to economic opportunities is limited to the privileged few, if consumers are at

the mercy of the producers, if people cannot get decent wages for their work, and if

the system of property rights is unstable and exploitable, there can be no prosperity.

In my first opinion as a justice of the Supreme Court in August 2010, and this

was just several days after I was appointed, where I dissented in the case of

Manotok vs. Barque. I sought a more philosophical statement wherein I emphasized

the need for stability in our system of rights not only to protect the functional order

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of property laws but also for the economic development process in the long term. I

was just developing the idea that while we in the judiciary have the duty to promote

the stability of property rights, it is rather the long-term view of promoting the

economic progress of our nation that this stability of property rights fits into.

Without this stability therefore, I said, “Transactions that make up our

economic system cannot be predictably upheld by our courts and the expectation

that is so vital to economic decisions. And that is the expectation of investors that

valid transactions between rights holders and the transferees of such rights will be

respected will therefore inevitably breakdown.”

When you look at it, the underlying health of an economic system must

depend on the Rule of Law. When the Courts decide on issues involving the allocation

of resources, they basically assume predictability in their outcomes. At least, this is

in the sense that if a person buys an object through legal means, her ownership will

be upheld by the law.

Yet, if there is uncertainty surrounding the capacity or the willingness of

institutions to uphold the Rule of Law, not only will the value of economic assets drop

but the very act of making economic decisions, specially decisions that are rooted

with a long-term view, will be clouded by this incentive. This is actually an economic

formula in narrative form. So the view here is that we in the Court have a duty to

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stabilize the expectations function of investors. In other words, we have a duty not to

change rules mid-game. People cannot invest in the future if they are unsure about

whether their rights of ownership will be safeguarded by the courts. Stable systems

of rights are the very foundation of our economic system.

In this light, we should also examine what we mean when we talk about

prosperity and economic development or the question of what characterizes a

developed country. If you look at the Constitution, you basically understand that our

people expect a more holistic view of development than one that is just measured in

terms of GDP per capita.

It is therefore a development paradigm that asks the important question of

how equitable the allocation of wealth and resources in a country is. How are they

distributed? Does the majority of the wealth and opportunities lie only in the hands

of a privileged few? If we are to say the economic justice is a fundamental element of

justice, and I say it is, then we must also include the need for equitability in all its

aspects in our goals for development. We should strive for a country where people's

liberty also includes their freedom to access economic opportunities that are not

limited to the elite. In this, the judiciary plays a pivotal role in creating a foundation

for a society in which opportunities are open to all who wish to avail of them and

people can make economic decisions with little uncertainty about the future. If

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therefore, Chief Justice Panganiban, economic decisions on policies is towards that

goal, you can already understand where this justice is going to lead towards.

The intertwining between liberty and prosperity, stable rights and economy

development, reveals its depth and breadth in the long term. Taking the long view, a

judiciary that remains steadfast in upholding the rule of law for 18 years can help

ensure a stable economy and a more prosperous future.

I am saying that there is, with all humility, a window of opportunity to really

create the stable and long-lasting foundations for economic development based on

the Rule of Law. Long-term stability in the judiciary will make a huge impact on the

decisions of people and business entities because they will then be more able to

think of the future to look forward and to make plans in the knowledge that rather

than being volatile, their rights rest on the judiciary's stable ground.

So when I was thinking very careful on what thoughts of Chief Justice

Panganiban to avoid discussing, I was very, very careful, and I have basically skirted

many of his notions on where the judiciary will step forward and when the

judiciary will step backward. Nevertheless, let me share with you some important

thoughts that I had been sharing with people that support the vision of this

Foundation for Liberty and Prosperity.

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One of the four pillars for an effective and sustainable reform agenda that I

have discussed before the public is the foundation of predictability, rationality, speed,

and responsiveness of judicial actions. When I talk about predictability of judicial

actions, my thought is that the business community – which is most of you of whom

are here in the audience – will no longer give a big question mark on the probable

outcomes in a case assuming that the lawyers who are helping them analyze the

risk parameters have done sufficient legal due diligence. In other words, it is not

going to be decided by who is the ponente or what the composition of the Court is

but rather it is because there are stable norms of right and wrongs, do's and dont's,

what is fair and what is not fair that will guide those who are making business

decisions.

The second characteristic of judicial action in this pillar is rationality. In other

words, you will be able to detect from our reason, decision, and opinion the logic

and the sensitivity in the prevailing situation that supported that decision. In other

words, we are not going to run helter skelter into an arena for which we are ill-

equipped but rather through a process of deliberate thinking and reason-building by

logical brick by logical brick, you will, in the end, agree that our reasons are

supporting the ultimate outcome of the action.

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The third characteristic of judicial actions that I want to push in the reform

agenda of this Court is the speed by which judicial actions are made. I understand

very keenly the time value of money. I understand that you consider windows of

opportunities within a certain time frame where your assumptions hold true. And

after that window of opportunity to make a decision passes away, the assumptions

and events are simply off. So in this connection, I am trying to think through a

sensitivity test on which particular characteristics of the kinds of cases that are

before us, specially before the Supreme Court, need immediate action and within

what particular period of time.

In international tribunals, and I have worked with a few of these, they

understand that nations need to move forward at a certain predictable speed and

these nations have to find out whether their decisions, their policy actions, fall

within the international framework of rules that have been agreed upon through

treaty ratification. I'm talking in particular about my experiences in the World Trade

Organization. If disciplines of that kind can be brought in international tribunals on

important policy decisions of nations, there is really no inherent reason why a

discipline of a similar kind cannot be brought into the judiciary.

The last characteristic of that particular pillar which is judicial action that I

wish to inform you of is the responsiveness of the judicial action itself. Does the

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action respond to the problem that is at hand? If the action is merely one that is in

order to rule on a matter that is academic or moot, then obviously the judicial action

is not responsive.

Now, to strengthen this pillar of the predictability, rationality, speed, and

responsiveness of judicial actions, I am going to create a group of consultants, of

course with the support of my colleagues who will give us templates or guideposts

on which conflicting decisions we need to iron out. Not that we are bound by their

problem identification areas but that areas where you already have a list of areas

that we can watch out for will give us the opportunity to act timely when a petition

is filed before us or when we see that there is an appropriate pending petition that

is before us to correct and stabilize jurisprudence. We will not be bound by this, but

we will listen. In other words, it is a system of creating red flags, avoiding

inconsistencies – inconsistent decisions – where we can avoid them and removing

the inconsistencies that are existing in our body of jurisprudence. That way, we will

make the Rules even more fair and predictable.

Now, with respect to, I have outlined a very long list of what is being called as

a re-tooling, remaking, re-engineering of our systems and procedures. Much of the

wealth that has been created by the group of people that are here in this august

audience has been sustained not only by the entrepreneurial spirit but because you

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believed in a core of professional managers that will create a systems that

undergird your basic activity of wealth creation of wealth generation.

The task before me as the head, as the administrative head of the judiciary, is

no different with the task before every CEO before me. The task is not only to create

the impetus for reform and to start the wheels rolling but to create systems of

operationalized procedures, audits, checks and balances, measuring performance

based on mutually agreed metrics. The thrust is to create a professionalized

judiciary, and this is something that will create basically a rethinking of the entire

culture in the judiciary. I have much to learn from the private sector in this regard

because the task not only is for me to guarantee that in the substantive aspects of

delivering justice with the goal of increasing liberties and improving the prosperity

of our people, the task is also to make sure that indeed that justice can be delivered

because it is supported by a system that works.

The system that we have to be modernized, and they have to be modernized in

order that we can implement best international practices. We must be wiling to be

transparent and accountable according to professionally arrived at and scientifically

based goals, means, and objectives.

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So if it is only our intentions and our thoughts that are propelling us in trying

to provide justice that supports liberty and prosperity and we do not have a system

that works, we know that in the long term that that is not sustainable. The goals is

that after I retire, when I retire in 2030, and Chief Justice Panganiban is there with

me during my retirement ceremony, I will be leaving a judiciary that is professional,

and may I dream big, that is the best in the bureaucracy, we have the best sector in

the bureaucracy that has systems that are world-class according to best

accreditation standards, that people believe in and that you, those who are in the

activity of creating the prosperity of our nation can rely upon to protect a stable

system of property rights and opportunities allocations. I know you do not disagree

with me in my reading of how the Constitution wants wealth and prosperity for all.

And I know that you are here to support me and I know that you will be there

because you know that when we invest in a judiciary that works, we are investing in

all our common lives, our common dreams, our common endeavors.

So to this august body and to those who have given funds, time, intellect, and

energy to this very worthy endeavor, you can count on the fact that I, in my personal

capacity, wish the Foundation for Liberty and Prosperity every success in its dream

of bringing this debate front and center and that to the extent that I can help you, I

am here, Chief Justice Panganiban, the justice, and I am also here proudly saying

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that we in the judiciary, we also dream as big as you.

Thank you very much and Mabuhay!