Jitterte
SEARCH FOR TRUTH - Ernesto P. Maceda Jr. (The Philippine Star) - December 14, 2019 - 12:00am

First, Mindanao’s Martial Law lifting allays investors’ jitters. Then, the cancellation of water concessionaires’ contracts restores investors’ jitters. Poor jitters – can someone tell it what to do already? It’s reminiscent of Michael Corleone’s lament in the lamented Godfather Part III. “Just when I thought I was out, they pull me back in!”

With a President as popular as Rodrigo Roa Duterte, jitters is net good. Why? Because it means that you have a President who is not afraid to cause them. 

We’ve had Presidents too scared of their shadow that they wasted stretches of their term needing to be reassured; and then there were others so beholden to special interests that you could set your clock to their programmed movements. Jitters in the past were clearly caused not by what our Presidents had done but by what they had failed to do. And, in the end, it showed. Whether it was tragic underspending that led to deceleration of economic growth; or the unbridled abuse of power by certain sectors that the incumbent couldn’t dare bring into line. 

Unjitterte. In the case of PRRD, these jitters are caused not by negative actions but, rather, because of his proactive decisions. And it is precisely because he is unfettered by jitters of his own that he is able to get away with most of what he has unnervingly done. 

There is universal approbation of the martial law lifting but a mixed reception over his cancellations of the concessionaires’ contracts. It’s the one step forward two step backward chacha. Win millions in arbitration, but lose billions in share value and possibly jail time. History will tell whether the President’s actions were wicked, warranted or wise. But for now, we are seeing the actions of a man who has not yielded to self-doubt nor surrendered to special interests. Anything he has done, thus far, is compelled by only one motivation – that is, what he believes to be in the best interest of his people.

Where is the logic? When the President’s repudiation of the concessionaires’ contracts reaches the Supreme Court, and we expect them to do so by urgent Petitions for TROs against the MWSS Board, that is when you look for the logic in his actions. 

The public surely has an elemental interest in the stable supply of water. PRRD has been obsessing on this all year beginning with the drying of our taps back in the 1st quarter. In this sense, he is speaking not just as our bullhorn but also as a consumer who won’t abide the continued inefficiency in the delivery of a basic need. 

But we have an equally essential stake in the stability of contract regimes. With the MWSS board unilaterally cancelling the contract extensions, there is no other place to go but to Padre Faura. There they would, under normal circumstances, anticipate a line in the sand to meet these “fresh” challenges to the freedom of contract. 

London bridge … The Supreme Court, in upholding this constitutional and statutory right, has hardly wavered from the acknowledgment that courts be cautious and prudent in annulling contracts, even those with onerous provisions. Duly executed contracts bear the presumption of validity.

From any given judicial decision on the immutability of contract provisions, we know the following to be true: contracts have the force of law between the parties; nobody can be forced to enter into one; no party can renounce it unilaterally or without the consent of the other. These guiding principles have illuminated dark paths for generations.

But if the burdens (onus, hence onerous) are heavy because of irregularity, then that’s a different story. Senator Francis Tolentino counts at least 20 provisions which have to be explained, including the surrender of the rate fixing power; passing on of business taxes to the consumer; the dreaded take or pay type clauses. 

… is falling down. At a time such as this fecund for doctrinal reinvention, who is to say whether torches for newer paths might be kindled? Justice Holmes famously wrote of how “the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices that judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”

Hence, for those asking where is the logic, find your clue in the Justice’s observation that “the life of the law has not been logic; it has been experience.”

Sausages and laws …Until last month, judicial decisions were the silent third parties of that pragmatic triumvirate oft mis-attributed to Bismarck. We are better off not knowing how they’re made.

“We’re only human” is the usual refrain underlying the posture that a little stumble here and there is forgivable. So what we know won’t hurt as bad. But it is a rationalization for governing in secrecy.

This is the heavy, anti transparency burden borne by the Court in its continued denial of the public’s overwhelming interest to view the Maguindanao massacre proceedings. The petitioners NUJP etc., from the time they stormed the court back in 2010 invoking constitutional rights to freedom of the press, right to information, right to a fair and public trial, right of free access to courts, have endlessly pushed the envelope.

The Court has had to balance this against the defendant’s right to due process as well as to the fair and orderly administration of justice. Additionally, the freedoms invoked are actually servable by means less prejudicial than broadcast coverage. 

The demand on the one hand is for a public trial. The accused on the other hand insist on a fair trial. Just like the quandary with the concessionaires, the public is a stakeholder on both sides.

The unanimous decision of the Supreme Court to allow the broadcast of just the promulgation is a sound compromise.

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