Writ of prosperity

Joan S. Largo, dean of the University of San Carlos School of Law and Governance, happily agreed to make the “writ of prosperity” (proposed in this space last Sunday) as a centerpiece of her two-year incumbency as the newly installed president of the Philippine Association of Law Schools (PALS).

The constitutional rights safeguarding liberty (like the “Miranda rights” that protect the accused from overzealous police officers) are self-executory and can be enforced by courts without need of subordinate laws. However, to be similarly enforceable, those reducing poverty and nurturing prosperity normally need implementing legislation.

To equalize these two sets of rights, two remedies are available: (1) congressional action, or (2) judicial rule-making. Of the two, the second is better because it assures that the action is constitutionally faultless. This rule-making prerogative is drawn from Article VIII, Section 5, Paragraph 5 of the Constitution granting the Supreme Court the power, among others, to “[p]romulgate rules concerning the enforcement and protection of constitutional rights.”

The Court has used this power several times. Thus, many decades ago, it promulgated (and several times revised) the “Rules of Court.” Recently, on April 10, 2010, it approved the “Rules of Procedure for Environment Cases”; and on Aug. 7, 2018, the “Rule on Precautionary Departure Order.”

The basic rights and principles to reduce poverty and to nurture prosperity are already enshrined in the Constitution and in several laws. The PALS will have to select, vet and assess which of them could  be enforced via judicial writs. In my limited space, let me take up some examples using the three general ways of earning a living as a guide: employment, professional practice and entrepreneurship.

To the first belongs the vast majority of our people, who expect to bridge the poverty chasm by becoming employees of the government or the private sector. Article XIII, Section 3 of the Constitution mandates the State to “afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunity for all.”

The challenge is how to craft a writ to compel the government (1) to provide adequate employment to the unemployed and underemployed; (2) to assure them salaries and benefits that will feed, clothe and shelter them, without infringing on the equal rights of entrepreneurs to be rewarded for their work and the risks they take; and (3) to protect them from exploitation by unscrupulous employers, including the government itself.

The challenge becomes more difficult with regard to overseas Filipino workers. How the government can be required to safeguard and promote their welfare is indeed daunting.

The second general way of earning a living is to be self-employed professionals. I refer to those privately practicing their vocations, like doctors who have their own clinics (not those employed full-time), lawyers in private practice (not the salaried ones), farmers who till their own farms, and fisherfolk who own or lease their nets and boats.

Finally, on the third way, the Constitution (Article II, Section 20) provides, “The State recognizes the indispensable role

of the private sector, encourages private enterprise, and provides incentives to needed investment.”

Truly, under our system of government, the private sector is the engine of growth. It propels the economy, provides employment and pays workers higher than the government for comparable jobs. Yet, many times, the government treats entrepreneurs unfairly, reneges on agreements solemnly entered into with them, and delays its decisions and actions, resulting in needless losses.

How to craft a doable writ of prosperity to solve these lapses, and thereby ensure wellbeing for all under the rule of law, is the major task of the PALS. To start the crafting process, Dean Largo, in her other capacity as one of the 13 holders of the Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity, will deliver a lecture on Oct. 12 keynoting the subject.

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