BBM’s eligibility, the rule of law and economic catch-up

The long-term prosperity of the nation — in our case the capacity to catch up with countries at the frontiers of progress — depends in no uncertain terms on its capacity to institute pro-value creation rules and to uphold those rules. The message of the 2012 best seller Why Nations Fail by Daron Acemoglu and James Robinson was that countries that fail to protect property rights and enforce contracts — the precis of the rule-of-law — are bound to fail. In the modern world, it is the courts of law that either uphold or rubbish the rule of law.

At the dawn of Prussia’s catch-up with the industrial leader, Great Britain, the lore goes (T. Kugler version, 1856) that Emperor Frederick the Great could not sleep from the clatter of a grain mill which predated his Sanssouci Palace and demanded that the mill be sold to him. Gravenitz, the miller, refused. “Does he not know that I can take the mill from him… without paying a single groschen?” the emperor asked. Whereupon the miller replied, “Of course… if… it were not for the Supreme Court in Berlin.” The reply, it was said, so surprised and impressed the emperor — who himself was instrumental in the court’s founding — he inscribed it as a header on the palace gate. A piece of lore it may have been but one that fired the warning shot to frontrunners: Prussia had discovered the magic formula, one which China under Deng also discovered, and A. Smith preached in the Wealth of Nations — give comfort to market agents that the pro-value creation rules will be enforced and they will produce. Prussia had institutionalized what Machiavelli in The Prince (1532) had identified as a touchstone for state progress and power: “What’s more, he (The Prince) should reassure his subjects that they can go calmly about their business as merchants or farmers, or whatever other trade they practice, without worrying that if they increase their wealth they’ll be in danger of having it taken away from them, or that if they startup a business they’ll be punitively taxed.”

Property rights of Prussian citizens will now be sacred even against the whims of emperors. You can wager your capital to build a windmill or a water system and the profits are yours to keep; if the political powers think otherwise, they have to prove their case in court. And if the penalty for a transgression meted by proper courts is perpetual forfeiture of a right, this right will be denied you in perpetuity, whosoever you are.

The Philippines has law courts that swear by “due process” among the cornerstones of the rule-of-law. But in the byzantine world of the Philippine courts, different, even zombie, variants of “due process” can masquerade as rule-of-law and spew out decisions that outrage common sense. Thus, it outrages common sense that ex-National Economic and Development Authority (NEDA) Director Romulo Neri was the one convicted in the NBN-ZTE case and perpetually disqualified from holding any public office while his principals and the promoters of the scam are walking unblemished and even holding public office. It violates common sense that “Kerwin” Espinosa and associates are basking in legal innocence despite all common-sensical indications to the contrary. It violates common sense that only minor functionaries are convicted in the PDAF scam while their principals are free and holding public office. In such instances, the court system is as much convicted as convicting.

In the Bong Bong Marcos (BBM) eligibility case, it is clear that BBM was convicted of tax evasion in 1995 by the regional trial court for failure to file his income tax returns in 1982-1985 while he was vice-governor and then governor of Ilocos Norte. This conviction was affirmed by the court of appeals although it also removed the imprisonment penalty. No one disputes that he was a public officer as vice-governor and governor from 1982-85. BBM appealed the decision to the Supreme Court but subsequently withdrew the appeal, making the conviction by the lower courts final and executory. These are known facts of the case.

Now, for all violations of the National Internal Revenue Code (NIRC), Section 286 of PD 1994, the Code that was violated, says: “Any person convicted of a crime penalized by this code shall in addition to being liable for the payment of the tax, shall be liable for the penalties imposed herein… if he is a public officer or employee, the maximum penalty prescribed for the offense shall be imposed and, in addition, he shall be dismissed from the public service and perpetually disqualified from holding any public office, to vote and to participate in any election.” Perpetual disqualification as an accessory penalty for conviction for crimes penalized by the PD 1994 applies to all public officers, whether or not moral turpitude is involved and whether or not the convicted paid the imposed penalty.

By PD 1994, Section 286, the law applying at that time of the tax evasion and by the uncontested facts of the case alone, rule of law demands that BBM is “perpetually disqualified from holding any public office, voting or participating in any election.” Legal snares will be hoisted by legal eagles to confuse and suggest otherwise. But BBM’s eligibility can be legalized only by a subversion of the rule-of-law. Other considerations such as the certificates of candidacy misrepresentation, moral turpitude, or non-payment of fines may be made to additionally bear but their necessity is secondary.

Due process is one of the cornerstones of the rule-of-law, but it is its diseased variant, the “dupe process” as it were, that in the Philippines repeatedly delivers the rule of men in the guise of the rule-of-law. Is it even conceivable that Commission on Elections and/or the Supreme Court will in this case uphold the rule-of-law? That will be a massive surprise and a welcome one as rare as such a courageous upholding of the rule-of-law which will signal a national rebirth. It will reverse somewhat what the newly departed National Artist and Ramon Magsaysay Awardee, F. Sionil Jose, identifies as one of the maladies that keep us shackled as a nation: “This is what ails us all — we do not ostracize them, we do not punish them — no we anoint these vermin instead.”

If they don’t, we continue our commerce with vermin and once more the prosperity of the Filipino is the casualty. The stakes cannot be higher.

Raul V. Fabella is an honorary professor of the Asian Institute of Management (AIM), a member of the National Academy of Science and Technology (NAST) and a retired professor of the University of the Philippines. He gets his dopamine fix from hitting tennis balls with wife Teena and bicycling.