Merging law and economics

Though not an economist, I was invited to speak at the launch of “Momentum,” a book on economic reforms by Romeo Bernardo, Calixto Chikiamco, Emmanuel de Dios, Raul Fabella and the late Cayetano Paderanga. Here’s a summary and update of my talk.

If there would ever be a Supreme Court for economic matters, I think the authors would easily constitute some of its most sagacious members. And this book would contain their landmark ponencias.

In my own books, speeches and decisions, I espoused a common theme with the authors: Humans need both justice and jobs; freedom and food; ethics and economics; peace and development; liberty and prosperity. These twin beacons must always go together; one is useless without the other.

Moreover, that theme inevitably leads to this desideratum: The best way to conquer poverty, to create wealth and to share prosperity is to unleash the entrepreneurial genius of people by granting them the freedom and the tools to help themselves and society.

During my over 11 years in the Court, I echoed the same theme. For example, Tañada v. Angara (May 2, 1997) affirmed, reluctantly in the beginning but unanimously in the end, our country’s membership in the World Trade Organization, and its adoption of the policies of globalization, liberalization, deregulation and privatization.

At the time I wrote this decision in 1997, the reigning economic doctrine was “Filipino First.” Thus, I had difficulty persuading my colleagues to abandon isolationist policies and to embrace the new 21st-century economic doctrines.

At the start, only three members of the Court fully concurred with me. But after days of patient explanations and discussions, I finally convinced the 14 other justices to agree unanimously.

When I became chief justice, the Court sponsored the Global Forum on Liberty and Prosperity. About 300 jurists, academics and lawyers from around the world attended.

The first female chief justice of Canada, Beverley McLachlin, requested, and I accepted, that the philosophy be renamed “liberty and prosperity under the rule of law,” to stress that the egalitarian goal should be achieved only via libertarian methods. Equally significant, the Forum adopted the Manila Declaration hailing the philosophy and calling for a reconvening of the Forum.

Unfortunately, after I retired, the Court returned to the tradition of giving primacy to political liberties and shelving prosperity only as a secondary objective. This traditional primacy is understandable because the wording of our Constitution makes the Bill of Rights, where these are listed, mandatory and self-executing.

In contrast, it listed the roads to prosperity (like the rights to education, to a healthy environment and to be free of poverty) mostly in three other articles which are generally viewed as mere ideals and aspirations. Unlike the Bill of Rights, they are not mandatory and self-executing; they need implementing laws to be judicially enforceable.

This is because our Constitution was born out of our centuries-old struggle from foreign domination. Notably, we borrowed our Bill of Rights from the US Constitution, which was also born from the American battle for independence, epitomized by Patrick Henry’s epic cry of “Give me liberty or give me death.”

After retiring from the Court, I organized the Foundation for Liberty and Prosperity or FLP in 2011 to give equal primacy to the twin beacons. It sponsors three educational projects.

First, with the help of the Metrobank Foundation, it created 20 professorial chairs on liberty and prosperity. Second, in partnership with the Tan Yan Kee Foundation, it sponsors 20 yearly legal scholarships at P200,000 each. Notably, FLP’s first batch of scholars all passed the last bar exam, with two landing the first and fifth places. Chief Justice Diosdado M. Peralta chairs this year’s scholarship board of judges.

Third, to encourage the writing of more literature on this philosophy, the FLP, with funding from the Ayala Corporation, holds dissertation writing contests annually, with prizes totaling almost P2 million. Senior Justice Estela M. Perlas-Bernabe is the chair of the board of judges.

The FLP aims to establish a roving museum on liberty and prosperity in 2020, and to reconvene the Global Forum on Liberty and Prosperity in 2021.

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