Erle Frayne D. Argonza
A relatively pleasant month it is in Filipinas this month of the year, though it showers intermittently as cold winds up north converge with warm equatorial winds. As the air becomes cooler, let us reflect on a raging issue worldwide concerning the extent of judicial power in economic & business concerns.
Filipinas is mired right now in questions about the said powers of our magistracy (Supreme Court) in regard to interventions in franchises and business operations. The executive (presidency) is particularly getting peeved at the seemingly Draconian powers the magistracy has been exhibiting, powers that could obstruct presidential initiatives in pushing through the new investments in big ticket projects.
There is now a perception peddled by the president’s spin doctors that the magistracy is turning into an obstructionist. Recognizing that the Supreme Court is no perfect institution, as the Justices’ decisions on business and project concerns could be tainted with corruption, to declare that it is obstructionist (i.e. it makes decisions for the sake of demonstrating its powers over the presidency) demands deeper reflections and deconstruction.
Presidential prerogatives could turn into bad curves every now and then, as they are used to favor certain market players over and above the Law. This is where our reflections should begin. The presidency (executive institutions) in the Philippines is particularly very corrupt and inept, and favors certain market players at the expense of fairness and constitutional regulations.
The abuses of presidential prerogatives on business franchises during the time of President Ramos, among others, have seen onerous franchises and contracts executed. The energy sector in particular became infested with greedy power producers who were favored over other players, palpable acts of felony that should have incarcerated the president himself.
But that’s not all. There were the Malaysian investors known for notoriety, who cornered whatever state companies and business concerns there were available in the 1990s for their portfolio investments to gobble up. The National Steel Corporation landed in the hands of the Hottick Group that never introduced any internal development in the company but which, in fact, closed the company up and sold it at five (5) times its purchase price much later (with state intervention in the transaction) to the Indian group Global Steel.
So many big ticket projects during Ramos’ incumbency were akin to the National Steel fiasco, while others were mired in corruption in the granting of the franchises. Ramos himself became a very wealthy man after he left office, yet he remains free amid the questionable presidential prerogatives his Office exercised then.
It is within the context of abusive presidential prerogatives that one should comprehend the exercise of judicial oversight with high-level intervention. The judiciary is a last bastion of fairness and rationality in project contracts and business franchises in a country with weak governance institutions, and so it flexed its muscles as provided for any way by the national charter as the Philippine case exemplifies.
No matter how well meaning the executive department may be, it has no monopoly of powers and wisdom to decide prudently about projects and franchises. President Aquino’s coterie of aides is pregnant with greedy and corrupt elements that include those who served as cabinet members in previous regimes. So why should the public leave everything to the presidency, when the presidential office is a classic nest of graft?
When the judiciary commits flaws that must be addressed, then they can be cited by a vigilant civil society and be addressed properly. One case in point is the issue of plagiarism hurled against a Justice by the professors of the University of the Philippines College of Law, with the concomitant demand for resignation by the plagiarist concerned.
While the magistracy continues to strengthen its own internal weaknesses, it must just the same exercise its oversight powers concerning developmental projects and business franchises. It will prove catastrophic if the incompetent presidential aides will hatch an operational modus aimed at destroying constitutional powers of judicial oversight, as such will become a new monstrosity that will lead to new rounds of corrupt acts by state and business mafias.
[Philippines, 04 December 2010]
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