28.7.14

Fallacies and the devil's bargain

was my Trade Tripper column in the recent weekend issue of BusinessWorld:

It is in the nature of small men to be petty. And to have the inability to admit mistakes. This whole issue of the Disbursement Acceleration Program (DAP) should have been excised from public consciousness after the Supreme Court made its ruling. After all, there are bigger, more urgent problems to address. But the government’s insistence that it is right and may incorrigibly do something similar sticks out like a bad sore one feels compelled to pay attention to.

The consensus is that the Supreme Court was right to state that the DAP-related acts or measures were illegal. The counterpoint from government apologists, however, is that the illegality was more technical than real, something only lawyers obsess about. Of the morality of the DAP, such is unquestionably right as the government was in “good faith.”

But sadly they mislead. From ad hominem (the Supreme Court is obstructionist), self-righteous (we acted in good faith and hence we are right) and strawmen argumentation (lawyers insist only they can comment on DAP), to tu quoque fallacies (the Court can’t rule on the DAP as it did similar acts as well), all miss the point that the law is there to be followed not merely when things are going well but necessarily so when situations are dire.

And this is precisely one of the underlying principles of our Constitution. That ours is not a government of passions or self-righteous ideologues but of laws. As James Madison wrote in Federalist No. 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

This is what the Wall Street Journal was saying when it commented on the DAP: Mr. Aquino “created a bad precedent.” Unfortunately, “taking an unconstitutional shortcut only dilutes accountability, relieves voters and congressmen from the consequences of their choices, and sets the stage for a more corrupt president in 2016 or beyond to channel spending for his own benefit.”

And frankly, the government itself was engaging in another fallacy: that of “either/or.” Either we did the DAP or social justice programs would have collapsed. That is a false dichotomy. As other commentators have pointed out, some of the programs for which the DAP was employed were actually truly needed. But the need for them had been identified long ago. Why then was it not vigorously insisted to be included in previous budgets? This administration had at least starting 2011 to do that.

The administration’s complaint is that our system is slow. That’s no excuse. Our system was precisely designed to be slow. To force each branch of government to confer with others, to ponder deeply, to force officials to move without haste, to plan far ahead.

The fact is, the government has fallen into the trap that many other governments before succumbed to: the belief of the righteousness of its cause and that it could solve everything only if it had the power to do so. Thus, like many other past governments, it comes before the people offering a deal: give us more power and we will achieve more. Give us more power and we will make your life better. We will get rid of corruption. We will be free of inequality. The offer will be about anything and everything. But such is a devil’s bargain.

Because we know this: “Power tends to corrupt, and absolute power corrupts absolutely.” We don’t even need refer to Lord Acton for this. Our history has that politician who promised all, including a nation great again -- only if he had more power.

Going back to the argument that the DAP issue is not only for lawyers: of course it isn’t. Matters of national concern involve every citizen’s duty and participation.

Ultimately (and many seem to not understand this), our political system is built on the idea that our country’s destiny lies not with the government but with the people. That’s why our government is one of merely limited powers. As Madison put’s it: government is merely an “auxiliary precaution,” there to assist the people to be able to do things for themselves.

Ours is a government of public servants, with limited functions delegated to them by the people. And the first thing they need to do to be good servants is to humbly set the good example of following the law.

20.7.14

Our father whose DAP ain't heaven

my Trade Tripper column in this weekend issue of BusinessWorld:

Well, one has to write about the Disbursement Acceleration Program (DAP) conundrum. Everybody has done so already and so I might as well give it my 25 centavos worth. And since others have already gone into the nitty-gritty legalities of the issue, I’ll just focus on certain conceptual aspects of the matter.

At the outset, it would be good to have a study of the actual ruling of the Supreme Court, the dispositive portion of which reads in part:

“Wherefore, the Court partially grants the petitions for certiorari and prohibition; and declares the following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and related executive issuances unconstitutional for being in violation of Section 25 (5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:

“(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;

“(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and

“(c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.”

So there was indeed a declaration of unconstitutionality, and this refers to, among others, “related executive issuances” (of which, in the Constitution, executive power is vested in the President and the President -- it must be considered -- “acts” through orders and issuances). Also, that a department secretary, like the Budget Secretary, is the alter ego of the President. Which means that the acts of the Secretary are essentially the acts of the President.

Having said that, comment has been made by certain quarters regarding the application of the “operative act” doctrine, whereby a government official who relies on a law or rule yet to be declared unconstitutional could have such reliance result in being upheld or even liabilities absolved.

The DAP ruling of the Supreme Court, however, precludes such blanket application of the doctrine: the “doctrine of operative fact can apply only to the PAPs [program, activity or project] that can no longer be undone, and whose beneficiaries relied, in good faith, on the validity of the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.”

Which is the correct view, I believe. In Yap v. Thenamaris (a 2011 case), the Supreme Court held that the “operative fact” doctrine will not be applied when such “would be iniquitous and would send a wrong signal that an act may be justified when based on an unconstitutional provision of law.” This is aside from the fact that the doctrine is an exemption rule and, hence, must be applied strictly.

A thing that bothered me during President Aquino’s Monday night speech was when he referred to himself as “father of the country.” Where did he get that idea? Even as a rhetorical device, it was in poor taste. The fact is, President he may be but he is in our system of government a paid public servant with a specific set of functions (e.g., execute -- not make -- laws), who heads only one of three co-equal branches of government, with powers merely delegated to that office by the people through the Constitution.

But perhaps that is where the problem lies: that he believes himself solely responsible for the State, that he is entitled to go even beyond our laws and our institutional processes to achieve (at least in his mind) rightful ends.

Forgetting for the moment the application of the Pauline Principle (“One should never do evil so that good may come,” from Romans 3:8), he also ignores basic philosophical foundations of our Constitution: the common good (found in the Preamble) and subsidiarity (the theme of which runs through the Constitution, particularly on devolution of authority). These two go hand in hand.

Of common good (and subsidiarity’s role in it), the best definition is in John Finnis’ Natural Law and Natural Rights: “a set of conditions which enables the members of a community to attain for themselves reasonable objectives, or to realize reasonably for themselves the value (s), for the sake of which they have reason to collaborate with each other (positively and/or negatively) in a community.”

Note the repeated mention of the attainment “for themselves” by the people. The President need not do everything, need not be some national patriarch.

Perhaps if this government trusted the people more and the system it set up by way of the Constitution, we wouldn’t be so deep in this mess we’re in right now.

11.7.14

The beautiful game

was my Trade Tripper column in the 4-5 July 2014 issue of BusinessWorld:

It's not easy to wax poetic about a sport when you’re living in the only one of two countries on Earth that isn’t crazy about it. But really, there’s no getting around it: football is the beautiful game. And if there’s anything that the ongoing 2014 World Cup in Brazil is doing, it is to demonstrate to the world how dramatic, unpredictable, elegant and powerful football is.

Many will perhaps shake their heads in disbelief. It is after all just a game with 22 men running up and down a field kicking the ball and getting crazy should it happen to go behind the net once or twice during the game.

But Ann Coulter (right as she often is; proof of which is how she drives leftists and progressives nuts) was wrong to say in her column that there are no MVPs in football, that scoring is merely accidental. If that were so, there would be no Messi or Neymar or Cristiano Ronaldo. And scoring in football is far from accidental. It is ability.

Football is not to be compared to basketball, the sport, which most Filipinos go gaga over. Basketball’s strength is in its repetitiveness.

I don’t buy it when Phil Jackson said basketball is a spontaneous, fluid sport. It is repetitive. Even Kobe Bryant said this in so many words. The plays are crafted, then memorized. Both teams, at the highest levels, actually know what’s going to happen next at both ends of the court. Basketball all boils down to execution, of which Bryant and Michael Jordan are its primary executioners.

No. The better comparison would be to chess. After the first 40 possible moves, chess progresses to 400 possible positions. By the fifth move, one could possibly log 4,897,256 potential moves. Football is the same; although, in some ways, even more complex: moves are not fixed to alternating between players, the 22 “pieces” are moving (and moving fast), and the movements don’t remain on a flat square.

Admittedly, football has problems translating to media. It does not lend well to being made into a movie or for TV viewing. The fact that it has no breaks except for half-time means that advertisers get left out. It’s not broken into quarters and statistics for TV analysts to comment on during lulls in the play.

Football keeps moving -- unlike, say, baseball. Baseball is easy to shoot as a movie or to write as a novel: with all the breaks between innings and pitches, the writers have the opening to put personal drama (or comedy) in between the actual action (see For Love of the Game or Bull Durham as examples).

Football, on the other hand, has to be savored directly. And this is to be emphasized: watching those moments on Youtube won’t be the same. Those moments have to -- must -- be experienced.

So contrary to what some say that it’s a sport where the ball just gets kicked back and forth, a closer look reveals the sheer artistry in footwork that even a Nijinksy would envy, the athleticism that an Ali would admire, or the speed that would exhilarate a Senna.

And then you have those supremely, shatteringly magical moments that last you a lifetime, imprinted in your brain, replayed over and over to marvel at and, yes I’ll say it, remind you that life is good. And much like life, the good comes with the bad.

The bad: I remember being 16 years old watching Maradona in 1986 shamelessly celebrating a goal he handballed over the Brits. But then, I also remember, of moments later being rendered speechless as Maradona dribbled from mid-field, at full speed, past one, two, three, four, five England players and finally blasting the ball into the goal. I could still hear, in my mind’s ear, the announcer shouting in disbelief.

And like life, football has its ups and downs: there was frail Roberto Baggio, going against the powerful Nigerians and with Italy facing elimination, in the Round of 16 of the 1994 World Cup, miraculously left alone within the penalty area, and scoring in the final two minutes of the game. He’d later score another cardiac-arresting but utterly sublime (no other word for it) goal, again in the last two minutes, against Spain in the quarterfinals. He’d then authoritatively stamp his will against the much bigger Bulgarians in the semis. In the finals against Brazil (which had Bebeto and the great predatory Romario), Baggio -- exhausted, in pain -- would be blamed for the loss, missing in the decisive penalty shootout.

Thinking about it more, ultimately, perhaps, there really are no ups and downs. For in football, it’s not the tedium or the disappointments or the hooliganism that one remembers. Like life, it’s about those fleeting moments when once in every great while, amid all the complexities and confusion, you get to live perfection.

It’s a beautiful game.

China's dashed lying lines

my Trade Tripper column in the 27-28 issue of BusinessWorld:

Amid all the news regarding arresting senators and the expected ruling on the Disbursement Acceleration Program (DAP) by the Supreme Court, China’s attempts at territorial grab goes on. Bloomberg Businessweek reported that “in recent months, vessels belonging to the People’s Republic have been spotted ferrying construction materials to build new islands in the sea. Pasi Abdulpata, a Filipino fishing contractor who in October was plying the waters near Parola Island in the northern Spratlys, says he came across this huge Chinese ship sucking sand and rocks from one end of the ocean and blasting it to the other using a tube.”

The report goes on to say that “land reclamation work at Johnson South Reef started in February. There have been reports of Chinese activity at two other reefs in the Spratlys. ‘They are creating artificial islands that never existed since the creation of the world,’ says Eugenio Bito-onon, mayor of a sparsely populated stretch of the archipelago called Kalayaan. ‘The construction is massive and nonstop,’ he says, and could pave the way for China’s ‘total control of the South China Sea.’”

Providentially, Supreme Court Justice Antonio Carpio made a frank assessment of the Chinese claims during a lecture given at one of Manila’s universities: “Clearly, there is nothing ‘historical’ or ‘right’ about China’s nine-dashed line claim. The nine-dashed line claim is based not on historical facts but on historical lies.”

In fact, continues Justice Carpio, “neither the Spratlys nor Scarborough Shoal appeared in any Chinese dynasty maps, as obviously the Spratlys and Scarborough are several hundred miles farther south to Hainan Island.” Furthermore, “numerous ancient maps made by Westerners, and later by Philippine authorities, from 1636 to 1940, consistently showed that Scarborough Shoal, a.k.a. Panacot and Bajo de Masinloc, has always been part of Philippine territory. Scarborough Shoal has never appeared in a single ancient Chinese map throughout the long history of China. Neither is there any historical records of any Chinese expedition to Scarborough Shoal.”

Justice Carpio concludes: “China’s so-called historical facts to justify its nine-dashed lines are glaringly inconsistent with actual historical facts, based on China’s own historical maps, Constitutions, and official pronouncements. China has no historical link whatsoever to Scarborough Shoal. The rocks of Scarborough Shoal were never bequeathed to the present generation of Chinese by their ancestors because their ancestors never owned those rocks in the first place.”

This “nine-dashed line” has been a real nuisance not only for the Philippines but for all other countries wanting stability in the region. The problem with it is, not only is it based on historical inventions, not even the Chinese themselves in all likelihood know what it actually is. There has been no actual legal document specifically laying down in precise terms what the boundaries of the “lines” are.

And, as James Holmes writes (“The Nine-Dashed Line Isn’t China’s Monroe Doctrine,” The Diplomat), for the Chinese to claim that their “nine-dashed line” is merely the Chinese version of the Monroe doctrine is rubbish:

“... let’s beware of taking history lessons from representatives of a regime that managed to airbrush such misdeeds as the Great Leap Forward, the Cultural Revolution, and Tiananmen Square out of official and popular memory while casting itself as the heir to the Confucian traditions it once sought to eradicate. These are folks set on convincing you the lightning-bug is the same thing as the lightning.”

Mr. Holmes continues: “The difference between the American and Chinese visions of maritime law is the difference between the 17th-century Dutch international-law theorist Hugo Grotius and his English foil, jurist John Selden. Grotius insisted the seas weren’t subject to national sovereignty -- to ownership, in effect -- while Selden proclaimed English sovereignty over the waters lapping against the British Isles. A century ago, as now, Grotius is the face of US policy in the commons. Selden may as well be China’s prophet of maritime law.”

Finally, one point I’d like to make came to me while reading Mu Chunshan’s The Diplomat article (“Why Doesn’t Russia Support China in the South China Sea?”) and this is Russia’s silence despite the worsening conditions between China and the Philippines: “Russia also enjoys a good relationship with the Philippines. For example, two years ago, three Russian navy vessels (including the anti-submarine destroyer Admiral Panteleyev) arrived in Manila for a three-day port visit. According to Russia, this visit helped improve Russia-Philippine ties.”

I just find it ironic (and also amusing) that President Aquino has the benefit of Russia’s (for now) policy of non-interference. For that, it can thank Ferdinand Marcos (working with his Executive Secretary Alex Melchor and Aide-de-camp Jose Almonte), who decided to initiate diplomatic ties with the then Soviet Union in 1970. This at a time when US support was crucial for Marcos. A huge gamble if there ever was one, now paying off.

23.6.14

UA&P Law: First Class

my Trade Tripper column in the recent weekend issue of BusinessWorld:

On June 16, I did something I’ve done ever since I became a lawyer: walked into a classroom to begin the semester. It’s a routine that rarely varies. Everybody stands for a short silent prayer, then “I’m Jemy and the subject is Philosophy of Law (or Public International Law),” and classes begin. Which was exactly the thing I did last Monday. Except this time it felt different. Probably because it’s not every day one opens the very first school year of the country’s newest law school.

The University of Asia and the Pacific (UA&P) School of Law and Governance finally held classes for its Juris Doctor law program -- with 31 brave students who’d rather break new ground than do ordinary. They come from a variety of fields: from political economy to business, film-making to medicine.

Before launching into the intricacies of the law, I told the students: “As you will find out, not only are you the ‘first class,’ you -- this day, this moment -- are also the culmination of 50 years of dreaming, planning and praying. As such, you, like your teachers, have the responsibility to be who this School is meant for: cultured, ethical, patriotic, professional lawyers and leaders of our society.”

They were reminded that this School will be different from other law schools to its very core: they are to treat one another as comrades; they are not (like other law students) to hide notes from each other or intentionally misplace library books, to never improperly approach (“gapang”) faculty for better grades. They are also to meet the pressures of law studies with restraint. In short: no dramas.

And the most unsettling for many that previously studied or are currently studying law: there is to be no shouting, cursing or vulgarities. This is a rule that extends even to the teachers. Everyone is to act, talk and dress like the professionals they’re meant to be.

This is not to say that the students will not be toughened up for the profession they seek to enter. The monstrous amount of reading, the relentless questioning from the teachers, and the very nature of law study itself will see to that.

And indeed they need to be tough. Aside from the many ethical and competitive challenges that lawyers today face, the law profession itself inevitably confronts a fundamental shift.

As John O. McGinnis and Russell G. Pearce (in their 2014 paper “The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers In the Delivery of Legal Services”) declares: “Machines are coming to disrupt the legal profession and that bar regulation cannot stop them. Machine intelligence is not a one-time event that lawyers will have to accommodate. Instead, it is an accelerating force that will invade an ever-larger territory and exercise a more firm dominion over this larger area.” In the areas of “discovery, legal search, document generation, brief generation, and prediction of case outcomes,” lawyers will be edged out by technology.

UA&P presciently foresaw such changes. As such, its law graduates (more than mere court technicians) should be capable of researching, planning and strategizing for or heading organizations of whatever nature (public or private). As Columbia Law School Dean David Schizer, in an interview with the Financial Times, points out: “You want the people who run the organization to think like lawyers; and you want the lawyers to think like people who run the organization.” This, he argues, “should inform how the law is taught because graduates often end up not as practicing lawyers but running businesses.”

One way UA&P is doing that is by training its students not only in the technicalities of the law but doing so within the context of a truly liberal education. In other words, to train our future lawyers how to think critically.

Unfortunately, “critical thinking” for many schools (and media) today means automatically opposing Church doctrine, the traditional family, traditional marriage, to be anti-American (or “anti” something), and to reject the idea of a strong Philippine republic.

But a true liberal education, as Robert George demonstrates (in his essay “Academic Freedom and the Liberal Arts”), “assumes, to be sure, that there are right answers to great moral and existential questions. It is the enemy, not the friend, of moral relativism. But liberal arts teaching is not fundamentally about telling students what the right answers are -- even when we are justifiably confident that we have the right answers. It is about considering arguments and counterarguments, and examining competing points of view.”

Theodore Roosevelt once said: “To educate a man in mind and not in morals is to educate a menace to society.”

Regrettably, law schools past have produced such menaces to our society, many disguised as the “socially aware” self-righteous kind. It is our hope that the UA&P School of Law and Governance will be different from them, producing lawyers truly worthy of the “noble profession.”

18.6.14

Science, philosophy, and the question of life

my Trade Tripper column in the recent weekend issue of BusinessWorld:

One of the biggest frustrations I have with the Supreme Court ruling on the Reproductive Health (RH) Law was not that RA 10354 was upheld. Rather, it’s the irrational celebration by pro-lifers due to their belief that the Court affirmed the idea that “life begins at conception.” Irrational because the question of when life begins was never really an issue. RA 10354 itself, as noted by the Court in its ruling, “clearly mandates that protection be afforded from the moment of fertilization” and “that abortion is a crime.” All the while, the real and true issue of contraception was forgotten.

In any event, the implications of the RH Law ruling is for another article to tackle. Instead, let’s focus on the idea that life supposedly begins at conception. The argument usually given to support that position is that science (rather than religion) provided the objective and settled “fact,” hence concluding the debate.

To quote law professor Robert George (taken from his remarks before the American Political Science Association Convention): “A human being is conceived when a human sperm containing 23 chromosomes fuses with a human egg also containing 23 chromosomes (albeit of a different kind), producing a single-cell human zygote containing, in the normal case, 46 chromosomes that are mixed differently from the 46 chromosomes as found in the mother or father. Unlike the gametes (that is, the sperm and egg), the zygote is genetically unique and distinct from its parents. Biologically, it is a separate organism.”

From this, anybody can now logically conclude, as Mr. George does, that: “The scientific evidence establishes the fact that each of us was, from conception, a human being. Science, not religion, vindicates this crucial premise of the pro-life claim. From it, there is no avoiding the conclusion that deliberate feticide is a form of homicide.”

But if one looks closely at the matter, science did not declare the fetus’ humanity. And not even Mr. George said so (note he says that science merely “vindicates” the pro-life “premise”). The reason is that science could only describe characteristics. But to determine what those characteristics in total make up, one has to rely on metaphysics.

Or to put it another way: it is philosophy that tells us what a human being is and then science merely comes in to tell us if the conditions set by philosophy have been met.

As Fr. Cecilio Magsino (a philosophy expert and my Philosophy of Law co-lecturer at the University of Asia and the Pacific School of Law and Governance) once wrote in his blog: “... proving that human life begins at fertilization falls outside the scope of science. What science can do is to provide empirical evidence and elements to aid reason so as to arrive at the conclusion that life begins at fertilization. But this conclusion is itself a philosophical one. The reasoning behind it is quite simple: If we say that Peter is the same person we saw today and yesterday, we can say he was the same person the day before and so forth all the way until the moment he was conceived. He would not become a person if he was not one the moment his life began.”

Philosophy professor Mathew Lu affirms that “science can tell us when life begins, provided that we already know what to look for. Empirical biology alone cannot tell us what that is. Once we establish a metaphysical account of life, then empirical embryology can tell us whether the relevant conditions are met.”

Indeed. Science can’t “actually tell us when life begins. In fact, determining which criteria are the right criteria for ascertaining whether a living thing exists is not an empirical question at all. Instead, one’s answer to this question will turn on how one understands the nature of a living thing -- i.e., on one’s metaphysics of life. In the final analysis, questions of existence are not, and cannot be, ‘scientific’ questions, simply because they are not what empirical science is about.”

So what’s the point? Because contrary to what most involved in political or policy debates are concerned, while science may indeed be “objective” and arguably “neutral,” it has limits (as was demonstrated above). Instead, most of the really important issues that need to be confronted: poverty and social justice, same-sex marriage and divorce, euthanasia, stem cells and embryology -- all of these can only be addressed through a fundamental understanding of philosophy.

Fr. Magsino puts it best: “Developed countries have risen to that status by dint of hard work, justice, law and order, truth and other values their culture holds dear. The way a nation acts depends on the way its people think: it depends on their philosophy. Man acts based on what he knows. To act well, a man needs a good philosophy.”

That’s a truth that our Supreme Court, Congress, and the Executive Branch still need to learn.

16.6.14

June 16, UA&P Law

My remarks opening the school-year for the Juris Doctor Law Program of the UA&P School of Law and Governance:

"It was Theodore Roosevelt who said that "To educate a man in mind and not in morals is to educate a menace to society."

As you will find out, not only are you the 'first class', you - this day, this moment - are also the culmination of 50 years of dreaming, planning, and praying. As such, you, like your teachers, have the responsibility to be who this School is meant for: cultured, ethical, patriotic, professional lawyers and leaders of our society.

And with that in mind, I welcome you to the University of Asia and the Pacific School of Law and Governance."