Professor Marvic M.V.F. Leonen
There is a prevalent view that law mirrors social consensus. And there is the belief that because it does, its interpretation can be done in a manner that will allow lawyers and judges to be neutral. Passionate political standpoints give way to the sterile objectivity of exogenous articulate of law and legal principle. The Rule of Law prevails over the unending human struggle to dominate over others.
The law largely justifies its existence as a separate discipline on the basis of these principles. The ideal, in traditional law schools, is for students to hermeneutically seal themselves in law libraries, pondering over reports of past cases trying to discern what the law is and the legal principles that animate its interpretation. In a sense, the concept of the Rule of Law fundamentally requires some distance from the crudest forms of reality.
II
But legal institutions are human institutions. This is easy to see in the legislature. We only need to witness the current exchange in the floor of the House of Representatives to see how political arguments are crudely represented as legal principles. However, owing to tradition, the human nature of the judiciary is more difficult to accept.
A few examples however will readily reveal this reality.
On January of 2004, the Supreme Court of the Republic of the Philippines was confronted with a case that would determine whether foreign corporations—or those with more than forty percent of its capital stock owned by foreigners—could operate and manage a large scale mining concession in Mindanao. In 1995, the President of the Philippines signed a Financial and Technical Assistance Agreement with one of the world’s leading mining corporations. The area awarded under that agreement was initially 95,000 hectares.
The petitioners were members of several B’laan communities in Sultan Kudarat and South Cotabato. They were principally motivated by a desire to protect their ancestral domains and pursue a path to development that would involve their efforts at self-determination. They were convinced that the contract awarded to the transnational mining company was unconstitutional. In the seemingly restrictive words of the 1987 constitution, the President may only enter into “agreements involving either technical or financial assistance” with foreign corporations. The text departed from the words found in the 1973 constitution which apparently allowed a more liberal regime for foreign investments. It allowed foreign corporations to enter into service contracts “for financial, technical, management or other forms of assistance.” The petitioners and the indigenous peoples they represented depended on a reasonably apparent reading of the constitution. Winning the case would have meant having more control over their domains and doing much more than simply depending on the exploitation of non-renewable metals dug from the ground.
In January 2004, the Supreme Court voting 8 to 5 ruled that foreign corporations or their subsidiaries are not allowed to enter into contracts that would allow them to operate and manage. Reading the text of the constitution, the Supreme Court advised that such corporations can only provide “technical or financial assistance” to government or to other qualified corporations.
To the respondents, which included the Republic of the Philippines and much of the mining industry, the results of the case would define the openness and stability of Philippine policy towards foreign direct investments. Estimates submitted to the Supreme Court valued metallic mineral resources as 47.3 trillion pesos. Understandably, motions for reconsiderations were filed. The Chamber of Mines filed a full blown intervention to present their arguments relating to the proper reading or interpretation of the provision in question.
Within less than eleven months, or in December 2004, the Supreme Court reversed itself. There were now ten justices that sided with the interpretation of the respondents and the mining industry. Only four justices stuck to their position that the contract with the foreign subsidiary was unconstitutional from a plain reading of the provision of the constitution in question.
The majority opinion in La Bugal Tribal Association et al v Western Mining Corporation et al expressed its doubts that a literal reading of the provisions of the 1987 constitution was warranted. It read the text as ambiguous: capable of carrying different meanings. The main opinion assumed that foreign direct investments in the mining industry carried all the risks in the commercial enterprise and that the state was burdened with none. From there, it concluded that a more relaxed interpretation—one that would provide more prerogatives to foreign corporations—was necessary.
This case would later on become the subject of a number of passionate discussions: both academic and polemical.
In Association of Small Landowners et al v Department of Agrarian Reform, the court upheld the constitutionality of the Comprehensive Agrarian Reform Program in spite of the fact that the law prescribed compensation to landowners in both cash and government securities. Prior to this case, jurisprudence consistently required cash to be paid in cases where there were takings of private property for conversion to public use. The constitutional provision in question was quite sparse. It mandated that “private property shall not be taken for public use without just compensation.” For the court, there was room to distinguish two types of condemnation of private property. First, there was the taking of single pieces of property that characterized most of the eminent domain cases. But there was also the “revolutionary taking” such as in a comprehensive agrarian reform program, which required a cash strapped government to supplement modes of payment through other government securities, if only to implement the constitutional mandate to meet its social justice objectives clearly laid out in the constitution.
Speaking for a unanimous court, Justice Isagani Cruz noted: “We don’t mind admitting that a certain degree of pragmatism has influenced our decision on this issue, but after all, this Court is not a cloistered institution removed from the realities and demands of society or oblivious to the need for its enhancement.”
Just what degree of pragmatism is truly acceptable? Does it depend on a political result, perhaps even an overarching theory of interpretation?
Words are malleable. Reading, which is the exercise of putting meaning to text, requires fundamental paradigms in semantic method and the use of the words that are read. Whether the phrase “either technical or financial assistance” for foreign corporations implies a conjunctive or is simply an enumeration of possible contractual arrangements; whether “without payment of just compensation” really means only in cash depends as much on how we interpret as well as what are the results we desire. In the context of a Supreme Court decision, the deliberations might ensure against individual bias but they do not assure the public of the court’s collective persuasions.
In La Bugal, ten justices were convinced that foreign investors assumed all the risks as compared with the state. Implicitly, they also saw that more foreign investments are necessarily a good thing.
Of course, there are views from other disciplines that would regard this position as naïve. Herman Daly, a celebrated ecologist and economist, believes that nature is as much “capital” as financial contributions. The uncertainty of farmers displaced by mining activities is as much a risk as the uncertainty of returns from financial investments. The natural resource curse, or the empirical finding that the more an economy depends on natural resource extractive industries the less its rate of growth, has been argued by noted economists like Andrew Werner and Jeffrey Sachs.
Jurisprudence is replete with unexamined causal claims that may not withstand more rigorous inquiry. Thus: flight of an accused is indicative of guilt; moving away from approaching police is enough reasonable suspicion to allow a search; deliberations of delegates in constitutional conventions reflect the understanding also of people who would later on ratify the resulting constitution; public officers will regularly perform their duties; insanity or psychological incapacity only exist if defined medically. Unfortunately, because of the nature of the law, unexamined judicial predicates and causal claims can be devastating.
III
Then there is the political nature of courts. Rightly or wrongly, they have provided legitimacy to resolutions of political crises by simply proclaiming what is constitutional or legal.
In 1973, after martial law was declared, the Supreme Court was presented with a new constitution that government then claimed to have been approved without any plebiscite. Instead, the President called for barangay assemblies. The clear consensus among the sitting justices in Javellana v Executive Secretary was that the constitution, contrary to all existing doctrine, was not validly ratified in accordance with the earlier constitution. However, the court proceeded to declare that there was “no further judicial obstacle to the Constitution being considered in force and effect.” The court was divided on a novel issue: whether there could be a doctrine of acquiescence.
This is of course not the last time that a fundamental shift in our political order would require statesmanship in the interpretation of the constitution. In Lawyers League for a Better Philippines v Corazon Aquino the reorganized Supreme Court in 1986 took only two paragraphs to dismiss a petition which questioned the legitimacy of the government post EDSA. Proclamation No. 3 issued in 1986 promulgated a Freedom Constitution. The document declared that this constitution was to take effect notwithstanding the 1973 constitution. Understandably, the lawyers representing the petitioners took this to mean that the entire government post EDSA was unconstitutional. Instead of examining whether the Freedom Constitution’s promulgation was done in accordance with the provisions of an earlier constitution, the Supreme Court unanimously took refuge in a constitutional principle that borders on a political standpoint, i.e. that the people are sovereign and all governmental authority emanates from them.
Then there is Estrada v Desierto decided in 1993. After EDSA II, former President Erap Estrada claimed immunity from any criminal prosecution on the ground that he was still the President of the Republic of the Philippines. The constitution provides that a President ceases to become president in case of “death, permanent disability, removal from office, or resignation”. Elsewhere in the constitution, removal from office implies impeachment for and conviction of high crimes. The petitioner claimed that he neither resigned from office nor was he convicted in an impeachment tribunal. In point of fact, he argued, he sent official communication to the Senate President and the Speaker of the House of Representatives that he was simply going on a leave of absence.
The Supreme Court declared that, in spite of the lack of express words of resignation, he was declared to have “resigned” from office because the “totality of the circumstances” should be taken into consideration. Among the details that the court considered were published diaries allegedly of his Executive Secretary serialized in a major daily broadsheet.
The study of the law cannot end with the knowledge that courts are deliberative bodies. Those that practice law must go beyond and understand the nature of influence, deliberation and perhaps even the impact of values and frames on decision making. Those who argue in legal forums should also understand the political value of the interpretation and result they intend to win. The law and lawyers cannot remain blind servants to vested interests.
IV
Increasingly, science and scientists have been deployed in legal arguments. Patent applications imply an understanding of the state of the art in a given field. Trademark infringement suggests the need to present a scientifically viable survey of an acceptable sampling of the relevant consuming public. Liability in tort requires a showing of cause and effect, i.e. the toxicity of a product, the carcinogenic potential of foodstuffs or even the propensity that children will absorb violence in television. Forensics is also heavily based on science.
Scientific justification of some regulatory measures is now required by the Agreement on Sanitary and Phytosanitary Measures within the context of the World Trade Organization. It is considered the golden standard to ensure that measures purportedly enacted by a member state to protect human, animal and plant life is not a disguised restriction to trade.
Hence, the Dispute Settlement Body has affirmed WTO Appellate Body Decisions declaring that regulatory measures are not being compliant with the treaty because of the insufficiency of the supporting science. The United Kingdom was not allowed to impose a ban on the importation of bovine meat injected with synthetic growth hormones because there were no studies specific to showing its effect on human health. Japan’s quarantine measures against red mature apples in view of its fear of pests causing fire blight was not allowed because the scientific studies presented on balance did not support its perceived risk. Australia was asked to amend its regulations banning the importation of fresh, frozen and chilled salmon because the ban was broader than what the scientific studies suggested.
It is not simply a matter of lawyers working with experts for testimony. Today, courts and arbitral panels are becoming true gateways of what is good or bad science.
V
The study of the law cannot remain isolated. The law cannot survive as an autonomous academic discipline. In many places and in the various law journals, faculties have dabbled in critical legal theories, policy science, law and economics, law and culture, law and social science, feminist legal approaches and even postmodern legal theories. The law has ceased to be the domain of those who view legal argument as a refined logical skill or as an extension of morality or ethics.
Effective legal argument should reveal a knowledge of the law and critical use of the current conventions of legal interpretation. But, every legal argument congeals positions with respect to the lawyer and client’s identity, ideology and politics. Gone are the days when the law student and professor inhabited only their own versions of history and logic. It is time to traverse disciplines. We live in a multi-layered, multi-dimensional world where the law should be seen only as one of its representations.
Of course, there are still those who are faithful to the majesty of the Rule of Law. Perhaps, they can tolerate some of us: the truly agnostic.
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from the UP WEBSITE
