The rule of law

We’ve been through a dictatorship so I’m sure many Filipinos can say with certainty that it doesn’t feel like we’re going through another one.

And the chief justice is not the Supreme Court or the entire judiciary, so I don’t see how his impeachment is an assault on an entire branch of government.

Since the “CJ” has already forgotten what he said that it’s Christmas, a time to let things be, and has opened his mouth, perhaps some members of the SC who disagree with him should do the same and say that impeachment of a chief justice is a process allowed by the Constitution. So far there has been no time for the SC to issue a TRO on the process and reinterpret that constitutional provision to benefit one of its members.

The joke the other day, following the CJ’s counter-attack against his principal critic, President Aquino, was that the Chief Justice prefers to be dictated upon by the previous president rather than the incumbent.

Pinoys have always been irreverent, but this attitude toward the CJ can take its toll on the Supreme Court. The impeachment process can serve as the avenue for erasing all doubts about the legitimacy of Renato Corona’s appointment.

It could also be the first time that we see an impeachment process through its conclusion, which did not happen in the case of Joseph Estrada when he was president. An official can survive an impeachment trial. If Corona manages it, he will be much stronger while P-Noy will be weakened.

Those behind the first-ever impeachment of a chief justice have explained that the swiftness of the process at the House of Representatives was meant to prevent the SC from short-circuiting the process through a temporary restraining order or TRO.

Much of the current criticism of the hasty impeachment is coming from people who never protested when Congress was a brazen rubberstamp of Malacañang, with lawmakers accepting loyalty fees in brown paper bags right in the halls of the Palace to kill an impeachment complaint against the president.

Perhaps one day, the SC will re-interpret its interpretation of the constitutional provision on midnight appointments by a president, as it applied to Corona.

Unless Pinoy proficiency in English is in its worst state of deterioration, creative imagination is needed to find ambiguity in that constitutional prohibition on midnight appointees by an outgoing president. Since this SC applied that creative imagination, those opposed to the appointment have resorted to the only other constitutional recourse to overturn the appointment, which is impeachment.

All parties concerned must be prepared for the trial, with the principal objective of seeing to it that the process is not as dysfunctional as the rest of our democratic system.

There’s no need for judiciary employees to stage a court holiday. With the glacial pace of Philippine justice, every day must be a court holiday in this country.

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Among foreigners, the principal concern is not so much who will emerge victorious in this bruising battle between P-Noy and Corona, but whether the recent developments will lead to a better judicial system and the rule of law.

The weakness of the rule of law in this country has been one of the biggest disincentives to foreign direct investments. “TRO” has become a dirty word for foreign investors – a reminder that justice can be for sale in this country and there is no level playing field.

The P-Noy administration still has to work on dispelling that perception and restoring investor confidence to an extent that we will actually see a significant increase in FDI.

A year and a half into the new administration, the signs still aren’t encouraging.

In addition to unpredictable business policies, the weakness of the rule of law and regulatory environment, investors complain of flip-flopping not just from one administration to the next but from one Cabinet secretary to another within the same administration.

This is the case with France’s Thales Group, whose multibillion-peso contract with the Department of Transportation and Communications, signed when Jose “Ping” de Jesus was P-Noy’s DOTC chief, is now on hold and under review by the new guys at the department.

Thales, in partnership with Japan’s Sumitomo Co., won the contract to install the communication, navigation surveillance and air traffic management or CNS/ATM system at the Ninoy Aquino International Airport.

The contract is now under review amid criticism that Thales has a questionable record. The company says it has installed civil aviation management systems (in this part of the world) in Australia, China, Indonesia, Japan, Singapore, South Korea, Taiwan, Thailand and Vietnam. Among its clients are Europe’s Airbus and Eurocopter.

De Jesus has defended the deal, but when you are no longer in government, such pronouncements count for little.

In mid-January next year, the transportation minister of France, Thierry Mariani, is arriving, and it’s a safe bet that the Thales deal is expected to be discussed – if he can find someone willing to talk to him.

Perhaps because of the holidays and recent political developments, no meeting has been set so far between Mariani and Philippine government officials.

The Thales deal is of particular interest to investors and certain foreign governments. Since it was signed by a member of the Aquino government, it is seen as a test of the new administration’s capacity to honor business contracts. 

In Chile, foreign investment statutes guarantee the sanctity of business contracts, regardless of changes in government. The statutes differentiate between the state and the government; it is the state that enters into the contract, and a government cannot overturn a deal once it is signed. The courts also cannot overturn a deal; an investment contract is TRO-proof.

Chilean laws also guarantee equal treatment and incentives for both foreign and local investors.

I know several other countries that have similar policies, if not laws, that they strictly enforce. These are the countries – our neighbors – that have left us behind.

They have predictable business rules and policies, and they can legitimately claim that the rule of law prevails.

They have functioning, credible and reliable justice systems.