DEMAREE J.B. RAVAL
Judicial activism
Sunday, 01 29, 2006
In the same fashion that we praised the Supreme Court (SC) for its trailblazing decision in the mining cases, where it allowed foreigners (finally) to take active part in the development of our natural resources, so must we find the same kudos to express our admiration for the adventurism that trial judges sometimes exhibit.
We wrote last week about the philosophical strain in the judgeship of Makati City Regional Trial Court (RTC) Judge Romeo Barza. We rejoiced over what many call his daring incursion into the realm of developmental magistracy. In him, we have witnessed a courageous willingness to step ahead of his time and surprise us with a nugget of wisdom that hitherto lies buried in the thick pages of our statute books. His flashes of innovative adventurism within the law have either shocked or upset or offended, to say the least, quite a number of Barza watchers. Not me — I found myself, blasé lawyer that I am, quietly applauding the man.
A few said I should have kept quiet and just reserve my praises for the learned eminences of the SC where, anyway, the law in its final form will finally be interpreted. For what else could you gain from praising — a little too soon, perhaps — a mere trial judge whose adventurism could eventually be struck down by the SC? I do not wish to put down that kind of middle-of-the-road point of view, even as it goes against my own. I would rather look at it as a slothful disinterest, a mindlessness born out of apathy and ignorance. Besides, the problem with staying in the middle of the road is that you’re likely to be run over by a speeding truck.
Many colleagues in the legal profession, however, did come forward from the sidelines to tell me that this kind of judicial activism is not solely Barza’s preserve. They cite RTC Judge Selma Palacio Alaras, also of Makati City. If this were so, the blindfolded Lady with the Scales be praised! This piece of information bodes well for the country’s judicial system, for we indeed now have trial judges who are not timorous with their kind of adventurism within the law, in the name of development.
The power projects sanctioned under the Electric Power Industry Reform Act (Epira) are projects for development. That much was the declaration of Barza in lifting the injunctive writ that effectively stopped negotiations between the government and some European investors over the use of a new technology using coconut husks and coconut shells to produce energy and generate power. Said Barza in his order: “Indeed, the issuance of the injunction against defendant has repercussions on the solution of the country’s energy crisis. As revealed in the MoUs, defendant has the equipment, technologies and methodologies developed in the Ukraine and the former Soviet Union which have been operated successfully for over 30 years, and the same can be beneficial to our country, which is still in search for alternative solutions to the energy and power crisis. To continue to enjoin defendant from imparting his technology will be a setback to our government’s efforts to resolve the crisis.”
The beneficial effects to the country of such technology, aside from the cheap power it produces, is the income to the coconut farmers. Hitherto unused agricultural waste such as discarded coconut husks and coconut shells, which clog our rivers and uglify our attractive beaches, are suddenly sources of additional income. Lest someone pooh-pooh the potentials of these materials as mere monkey business, let me tell him that the gain is not a mere pittance. How would he like to turn waste — yes, the very same husks and shells — to a potential income of P50 million annually? And believe it or not, that’s what the coconut farmers on the island of Masbate alone stand to gain, thanks to Barza’s creative judgment.
Development is something that is always at the back of our minds. But how do we attain development? Often, our decision-makers are hamstrung by the naked letter of the law. Frequently, most of our laws are proscriptive, not prescriptive. So what catches the attention of most judges is the black print of the statute, not the white flash of discernment that is the spirit of the law. But decision-makers such as Barza, when confronted with the bare statement that something is what the law says it is, simply do not stop there — they go behind it, in front of it or deep within it.
Because Barza refused to accept the bare claim of exclusivity in the Epira as to what are infrastructure projects, he found a window to conclude, rightly, that the technology on coconut husks and coconut shells is an infrastructure project. Poring over the Procurement Act (Republic Act 9183), Barza found a provision for what has since become the accepted meaning of infrastructure projects, which includes “energy/power electrification facilities.”
Perhaps the example of Barza could blaze a trail for balancing the interests of the country, for development, as against the private gain of a private litigant. That’s one small step for judicial activism and a giant leap for progress.
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