JURIST Columnist Edsel Tupaz of Tupaz & Associates, and former clerk to former Philippines Chief Justice Hilario Davide, says that through Davide's efforts, the Philippines has made great strides toward enhancing the rule of law in the country which were vital to the successful creation of an emerging liberal democracy...
lthough the current Philippine Constitution
has been in force since February 2, 1987, many observers still peg the Philippines as a transitional liberal democracy. With this in mind, the principal question for us is: What are the conditions and institutional features that will allow the country to foster the constitutional learning of civic responsibility and commitment to the broad aspirations of the Rule of Law? With the recent wave of revolutions in the Middle East and North Africa
, the world might be seeing more countries transitioning into liberal democracies. Can we envision compelling normative features for constitutional design in these and other transitional democracies? In Political Liberalism
, John Rawls suggests three inter-related tenets or normative aspirations of the Rule of Law: 1) legal entitlement the normative status where citizens can depend on the objective meaning of standing laws and not upon the grace of political elites; 2) legal justice that similar cases be treated similarly; and 3) legal rationality that decision-making is rationally constrained. In emerging or transitional democracies, there can be pervasive social distrust in the very formal laws and institutions which happened to be associated with a prior regime, and thus, an important reform measure would be to promote the constitutional learning of the Rule of Law.
For its part, the Philippines has erected constitutional guideposts through the Constitution's preamble, Bill of Rights and Article on Social Justice and Human Rights. In the experience of Chief Justice Hilario G. Davide Jr., the Rule of Law took ultimate form and shape in judicial reform, which he considers to be the key to good governance, which in turn, ensures the preservation of democracy. When Justice Davide was appointed as Chief Justice of the Supreme Court of the Philippines in November of 1998, he thought it best to start the constitutional learning of Rule of Law with the domain of government immediately at hand the Philippine judiciary.
The Davide Watch: Leading the Judiciary and the Legal Profession into the Third Millenium was a massive, united effort to breathe life to the Rule of Law. It was the vision-mission of the Philippine judiciary during the Chief Justice's stewardship of the Supreme Court, which sought "a judiciary that was independent, effective and efficient, worthy of public trust and confidence; a legal profession that provides quality, ethical, accessible and cost-effective legal service to our people, and whose members are willing and able to answer the call to public service." This reform agenda was realized through the Action Program for Judicial Reform (APJR) established in 1998, which the World Bank has endorsed as among the most comprehensive and successful judicial and legal reform programs today. The APJR aims to meet the challenges of restoring and enhancing public trust in the justice system; pursuing judicial independence in a traditionally centralized administrative environment; pursuing, synchronizing and sustaining judicial reforms as a leader; and ensuring the continuous development and institutionalization of capacities for sustaining reform gains.
Our judicial reform agenda through the AJPR articulated six pillars to effectively develop the intricate institutions that were to flow from our vision-mission:
- The speedy and impartial administration of justice;
- Judicial autonomy and independence from political interference;
- Improved access to judicial and legal services;
- Improved quality of external inputs to the judicial process;
- Efficient, effective and continuously improving judicial institutions; and finally,
- A judiciary that conducts its business with dignity, integrity, accountability and transparency.
Moreover, the AJPR is comprised of six components. The first, the "Judicial Systems and Procedures" component, addresses the issue on procedures to ensure speedy delivery of justice. The second, the "Institutional Development Reforms" component, seeks to strengthen the system by providing greater fiscal autonomy and independence from the other organs of government especially in matters of appointments to the judiciary. The third, the "Human Resource Development" component, covers matters such as recruitment, promotion, retention and compensation. The fourth, the "Institutional Integrity Development" component, addresses the issue of graft and corruption. The fifth is the "Access to Justice by the Poor" component. The sixth, the "Reform Support Systems" component, seeks to institutionalize the reform process so as to benefit not only the judiciary but all the stakeholders of the justice system as well.
The "Access to the Justice by the Poor" component, specifically, is perhaps the most relevant to the direct social development of the Filipino people. Our APJR reform measures under this component continue to pursue and promote physical access to the courts as well as speedy and fair adjudication of cases for all, protection of the poor from abuse by those who claim to influence judicial decisions, and improvement of the affordability of judicial services to the poor. In 2004, the Supreme Court launched the Justice on Wheels project, modeled after the mobile court system of the Guatemalan government, to provide fast and free resolution of conflicts and adjudication of cases, and to bring justice closer to the poor. As of May 2011, the program has released 5,334 inmates, settled 6,880 civil cases through mobile court-annexed mediation, given medical and dental assistance to 10,557 inmates, provided free legal aid to 2,750 of them, facilitated about 45 dialogues between and among stakeholders in the justice sector, and conducted 39 information dissemination drives for 15,688 barangay officials.
Total human development requires both economic sustainability and a robust culture of democratic processes that are founded on the fundamental values of the Rule of Law. UN General Assembly Resolution 62/70, adopted in December 2007, is entitled "The Rule of Law at the National and International Level," [PDF] and reaffirms that human rights, the rule of law and democracy are interlinking and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the UN. Furthermore, it declares that "the advancement of the Rule of Law at the national and international levels is essential for the realization of sustaining economic growth, sustainable development, the eradication of poverty and hunger and the protection of all human rights and fundamental freedoms..." Furthermore, we believe that the key for successful democratic practices lies in process the entrenchment of the Rule of Law in young democracies reeling from conflict must be a long and drawn out process of reform. Constitutional choices must be worked out through consultation, dialogue and constructive debate, if the tenets of the Rule of Law are to gain broad consensus, and in turn, enhance holistic human development.
Despite what can be considered to be great strides made by the Philippine judiciary, the country still ranked poorly in the World Justice Project's Rule of Law Index of 2011. The report measured 10 dimensions of the Rule of Law, including limited government powers, absence of corruption, clear and stable laws, order and security, fundamental rights, open government, regulatory enforcement, access to civil justice, effective criminal justice and informal justice. Although there is still a long way to go for the Philippines to properly ensure the establishment of the Rule of Law, we are confident that the steps we have undertaken so far will eventually lead to an accountable government, sustainable economic development, and respect for fundamental human rights. Through the AJPR, the Philippine judiciary has provided our country with fertile ground for "grassroots" constitutional learning of the Rule of Law, which can lead to a re-engineering of systems of processes of governance.
To the Chief Justice, "Judicial efficiency has to do with both the institutions that cause it, and the men and women who inspire it." In 1998, the Davide Watch was a prophecy, and may, in time, be a legacy. It was a personal conviction that ripened into an institutional vision-mission. In the years following the retirement of the Chief Justice from the Supreme Court, he continued his work to promote, protect and strengthen the Rule of Law in our country and in the global arena. From 2007 to 2010, Davide served as the Ambassador of the Permanent Mission of the Philippines to the UN in New York City, where he assumed the Vice Presidency of the Economic and Social Council. During this time, Ambassador Davide co-chaired the eighteenth session of the Commission on Sustainable Development, attended and presided over many roundtables, plenary sessions, informal policy dialogues and forums where participants reviewed trends in international development cooperation. Finally, Ambassador Davide collaborated with UN working groups and experts dealing with issues on the Rule of Law, as well as legal and judicial reform.
In the context of emergent liberal democracies, the administration of justice ceases to be a privilege or even a duty it is now an organic necessity. In continuing this work, the Chief Justice has and continues to emphasize grassroots constitutional learning of the Rule of Law through process-based judicial reform, applying and transposing its basic tenets into form and action. As disciples of the law and fervent ministers of justice, our commitment to the Rule of Law does not end when we step out of office. We believe that there will always be a dedicated group to succeed us, always ready to take up our cause in this great symphony of law and the national life.
Edsel Tupaz clerked for Chief Justice Hilario G. Davide Jr. (ret.) and is the founder and managing partner of Tupaz & Associates, a public-interest law firm. His expertise lies in comparative constitutional law, trade and development law and court systems design. Tupaz is also a professor of international and comparative law, teaching at law schools in the US and the Philippines. He is a graduate of Harvard Law School and Ateneo Law School.
Suggested citation: Edsel Tupaz, Building the Rule of Law in the Philippines, JURIST - Sidebar, Jan. 15, 2012, http://jurist.org/sidebar/2012/01/edsel-tupaz-davide.php.
This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at firstname.lastname@example.org