Time for a legal revolution

Let me further explain my position on the Constitution because it was questioned from my last column.

I do not believe that one must follow the Constitution precisely as it is written; the correct way is to follow its intent, and to interpret it in a way that is best for society. As I’ve stated innumerable times, law is the servant of society. It is not an ultimate unto itself, as has, too often, become the case in the Philippine legal system (probably elsewhere, too).

To make myself clear: The Constitution should not be taken strictly by its word but by the intent of those words, and interpreted in a way that is best for society. And I suggest that “intent” should also be what guides judges in all cases.

If you agree with me, let’s start a campaign to truly reform the Philippine court system that is so dysfunctional it can take, not just years, but decades to resolve even the simplest cases, let alone the major ones. Some, like the cases involving the Marcoses, never get resolved. It takes international courts to do just a part of it for us.

The President has appointed a Chief Justice who has promised reforms. Let’s try and help her succeed. She needs one thing as a start (which we all need): money. The Philippine court system is grossly underfunded. In 2012, the judiciary received P15 billion from the government, P17 billion in 2013, and P18.6 billion this year. The entire judiciary budget’s share in the total national budget hovers at a measly 0.8-0.9 percent per year. The paltry budget covers the jails we have been reading so much about recently, which are, just simply, inhuman. The amount of P30 is allotted for a meal. You can’t even buy a cup of brewed coffee with that.

I’m not going to evaluate the whole court system; let others more knowledgeable do so. I wish to focus on its involvement with the economy and business because much as I’m fascinated, as we all are, by the intricacies of the Napoles scam, it doesn’t affect our day-to-day activities. Actions and decisions on the economy and business do. And here, like in high-profile public cases, the record is dismal.

Judges know little about business, yet rule on it. And this includes particularly the Supreme Court. The justices have made far too many decisions that were just plain wrong. Is that presumptuous of me? No, because I base this judgment on whether the decision was good for the development of business and, hence, society, or not. And I base it on 50 years of being in business, both foreign and local.

We in business have formed an organization called the Judicial Reform Initiative (JRI), a concept conceived by Baby Nuesa, a former Ayala executive and a board member of several corporations. Several business chambers (Financial Executives of the Philippines, Management Association of the Philippines, Makati Business Club, Institute of Corporate Directors, the foreign chambers, etc.) have joined the initiative. Its task is to work with the Supreme Court toward a better understanding of business so that more knowledgeable decisions can be made.

And they can be, at least at the Court’s level, because the decisions are invariably split (the 13-0 on the Disbursement Acceleration Program and 14-0 on the Priority Development Assistance Fund are rare cases), which means the justices could have decided either way.

Let me give you a prime example: In January 2004, the justices ruled 8-5-1 that the Mining Act was unconstitutional. In December they reversed that ruling 10-4-1, showing that the Supreme Court has the discretion to decide either way. Its second decision was probusiness, benefiting the country. Its first decision was not.

On the other hand, it seems that there will be no reversal for San Roque Power Plant, whose request to the Court for a refund of the P483 million it had paid in value-added taxes was denied with finality in October 2013 despite the government’s having promised it as part of the deal to attract investments in an area we desperately need: power.  No one will invest in a country that doesn’t honor its commitments.

I can cite about a dozen similar cases of controversial decisions, and I’m sure there are far more, hence justifying the need for change.

Beyond that, we’d like a “business court,” a court to cover strategic economic and business issues ruled by a judge with business experience, or at least an extensive understanding of business that can process cases more quickly and correctly. Now I know everyone would like a court for their own area of concern, but business permeates everything we do and determines the life of every one, from the job we need to the toothpaste we use. It is the lifeblood of society, so it is not unreasonable to give it special attention. No one can be an expert in all subjects, so in all cases in this special court, or any other, where it’s business-related an independent expert “friend of the court” should be called in to advise the judge or justices.

The Constitution guarantees the people’s right to freedom from poverty and calls for economic prosperity. Anywhere upward of 50 percent of the population would tell you there’s been failure. Poverty remains a painful social curse. Poverty is eliminated by giving people jobs. So a judicial interpretation that supports business growth is what the Constitution calls for.

I hope the Court will take this in the right way, and agree that it’s time to shift from strict adherence to the words of the law to intent and what is best for society. This needs a revolution.