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Abraham Guiyab
Dr. George Carmona
Gregory Ong (Negative), Angela Feria (Judge)
4 May 2016

Proposition:
IMPROVEMENT OF THE QUALITY, EFFECTIVENESS AND
EFFICIENCY OF OUR LEGAL INSTITUTIONS, BY STRENGTHENING
THE RULE OF LAW IN OUR COUNTRY, WILL RESULT TO FASTER
AND SUSTAINABLE ECONOMIC DEVELOPMENT.
FOR THIS
REASON, REFORM OF THE LEGAL INSTITUTIONS SHOULD TAKE
PRIORITY IN OUR DEVELOPMENT EFFORTS.
Rebuttal Brief for the Affirmative Side
I.

Social Institutions Will Take the Place of the Rule of Law

The Negative side presumes that the role of the Rule of Law in promoting economic
development is largely dispensable, because of the presence of various cases of economic
development in predominantly non-Western states which achieved some form of growth because
of the existence of an institution that largely supplanted the role of law enforcement in governing
transactions, such as the family, social practices, or religious institutions.
This is clearly a fallacious line of reasoning. A reliance on socio-cultural institutions for
the enforcement of rights is an exceptionally risk endeavor, and is especially fraught with risks,
As has been mentioned, risk mitigation is one of the main reasons for the existence of the rule of
law to begin with; relying on culture or customs, which are inherently instable and ephemeral
constructs, is a very risky strategy. Worth noting is that our own laws recognize custom as a
source of obligation only when:
While ordinarily a law is written, consciously made, and enacted by congress, a
custom is unwritten, spontaneous, and comes from society. Moreover, a law is
superior to a custom as a source of right. While the courts take cognizance of
local laws, there can be no judicial notice of customs, even if local. A custom
must be proved as a fact, according to the rules of evidence, otherwise the custom
cannot be considered as a source of right.1
Clearly, as an aspect of risk mitigation, it would be erroneous to believe that customary
social and cultural institutions can actually offer both the transparency and reliability of actual
statues and enforcement mechanisms. Customs are not immediately visible or apparent,
especially to outsiders in a given locality. The rule of law imposes both uniformity and
predictability2, something that be understood both by outsiders and locals. While it is true that
1 New Civil Code, Arts. 11 & 12.
2 Garrick Apollon, The Intersection between Legal Risk Management and Dispute Resolution in the
Commercial Context, 15 Pepp. Disp. Resol. L.J. 267 (2015) Available at:
http://digitalcommons.pepperdine.edu/drlj/vol15/iss2/2

some societies with weak levels of legal institution and the rule of law in general have exhibited
economic growth, this should just be treated merely as an indicator of the fact that economic
growth is generally the normal state of being in most civilized societies in ordinary
circumstances. Restated, it is not correct to view the case of pre-industrial societies which
experienced growth as being because they had no rule of law, rather, we should view it as them
achieving growth in spite of the lack of legal institutions.
II.

Passage of Administrations Indicates Rule of Law is not correlated to Economic


Growth

Again, the Negative attempts to portray the fact that various administration change
without appreciable shifts in the economy (to use the Negatives example, the labor sector) to
imply that the rule of law itself truly produces no substantial effect in these industries. This is a
myopic view. It is settled under our laws that government is a different concept from
administration. Government as a concept pertains to the entirety of the official machinery and
institutions, while the administration merely refers to the actual individual who presently
occupies office at any given time. While administrations may change, government endures. The
laws that existed during the period cited by Negative have endured passed the administrations
that enacted them; indeed they endure even to this very day. 3 The buildup of economic growth
occurred because of the fundamentals which were continually improved by these successive
administration, punctuated only by drastic reforms in a few select administrations. For instance,
look at the case of oil deregulation. When President Ramos enacted a policy to deregulate several
of the more highly congested sectors of the Philippine economy, it seemed a daunting task.
However, political commitment managed to bring about the passage of the Oil Deregulation
Law.
As detailed above, moves to regulate the Oil Industry of the power sector began as early
as the 1970s, when the price volatility resulting from oil price shocks threatened the
governments finances. By the time of Ramos administration, plans had already been made to
deregulate it, but several factor have been identified which threatened to impede plans of doing
so. Firstly, there exists a long history of civil disturbances which have originated from oil and
petroleum product fluctuations, second, the fact that oil price costs would now be distributed
among a wider group of people, such as organized transport groups, which increases the amount
of opposition, and third, passing such a measure would require legislation, meaning it could be
affected by lobbying.
The deregulation effort was initiated by the Ramos administration through a nationwide
public education and information campaign regarding how the oil industry worked. The main
purpose of this campaign was to mitigate the fears of the people regarding the impending oil
price increases which may have resulted as a consequence of deregulating the market. By doing
so, the government hoped to reduce opposition to the plan, which was viewed as necessary if the
Congress was to be convinced to pass it. Ramos then committed the timetable for deregulation
legislation to the plan established by the International Monetary Fund.4
3 U, P. L. (2000). Competition Policy for the Philippine Downstream Oil Industry. Philippines ASEAN Study
Center Network.

Although initially it seemed as though passage of the bill was unlikely, the negotiations
conducted during the Legislative-Executive Development Advisory Council (LEDAC) proved
instrumental in expediting Congressional approval.5 Thus, an early Oil Industry Deregulation law
was passed which was in force for roughly 18 months beginning in April of 1996, until the
second and presently existing oil deregulation was passed. This was clearly an unpopular choice,
because of the belief that it would simply raise the prices for existing petroleum products.
Nevertheless, it was done, and by doing so a major structural obstacle to implementing
substantial reform in one of the major sectors of the economy was lifted. It is clear, to say the
least, that this type of reform, or countless others like it (such as telecommunications or airlines)
would not be possible relying merely on a system of kinship or informal social institutions. 6 It
takes formal, existing, and well established legal; institutions to address the very real problems of
market failure. Disruptive reforms such as the abovementioned will not prosper in an informal
system with prioritizes avoiding the rocking of the boat.
III.

Kinship System in the Philippines makes it ill-suited for reliance of the Rule of
Law

The Negative side places far too much belief in the strength of the bonds of kinship and
culture as a form of regulation. It has been well established that there has been a broad failure by
the Philippine Courts of Justice to actually serve the needs of the people. The need for rule of law
and State intervention is based primarily on the existence of the phenomenon known as market
failure, a state in which (as is commonly seen present in studies of regulation regarding large
monopolies, and firms in particular, which justify state ownership) the following conditions
exist: the existence of externalities in production and consumption, the product in question is a
public good, the market has a naturally monopolistic market structure, and information costs are
high.7It is immediately evident that this is also the situation which prevails with the judiciary and
access to courts in general.8 We have, on one side, a supply of justice (manifested in the form
of the courts and the available supply of lawyers) and a demand for justice (in the form of the
exceptionally congested dockets, and the inefficient manner in which both cases are decided and
new lawyers of sufficient competence are produced).
The inevitable conclusion is that there exists a market failure with respect to the
administration of justice in this country, and Negatives position is tantamount to essentially
offering informal institutions as an alternative to what is and should remain to be a formal
4 Bernardo, R. (2008). The Political Economy of Reform During the Ramos Administration (1992-98). Washington,
DC: The International Bank for Reconstruction and Development.

5 GRIPS Development Forum. (n.d.). The Role of Leadership in Managing the Development Process
:The case of the Ramos Administration in the Philippines
6 Sidel, John, Bossism and Democracy in the Philippines, Thailand, and Indonesia: Towards an
Alternative Framework for the Study of Local Strongmen. (2004)
7 Steven, L. (2004). CRITICAL ISSUES IN BRAZILS ENERGY SECTOR DEREGULATING AND PRIVATIZING
BRAZILS OIL AND GAS SECTOR. James A. Baker III Institute for Public Policy.

8 Venida, Victor S., Law and Economic Development in the Philippines, 47 Ateneo Law Journal 934
(2003)

institution.9 In this regard, such contention cannot but be treated as an offer of a knock-off in
place of the real thing.10 An industrialized and modern economy which does not rely on formal
institution and the rule of law certainly does not deserve the title of being a developed country.

9 Gollub and McQuay, Legal Empowerment: Advancing Good Governance and Poverty Reduction in
Law and Policy Reform at the Asian Development Bank (2001).
10 Hammergren et al., The Juicio Ejecutivo Mercantil In Federal District Courts of Mexico A study of
the uses and Users of Justice and Their Implications In Judicial Reform in World Bank Report (2002).