18.5.15

Compilation of articles on the Bangsamoro issue

For easy reference, I am listing here some selected articles I wrote for BusinessWorld on the Bangsamoro issue.

However, to start, here is my Submission to the Ad Hoc Committee of the House of Representatives on the Bangsamoro issue.

The BusinessWorld articles (selected) are as follows:

- CAB and BBL: The two towers of secession
- The Bangsamoro's international law gambit
- Bangsamoro and the myth of historical baggage
- Of constitutional interpretation and Bangsamoro Basic Law
- Bangsamoro: a question of consistency and constitutionality
- Bangsamoro: an Islamic State

A TV interview I gave on the issue can be found here.

A compilation of articles I wrote on the MOA-AD can be found here.

17.5.15

Divorce and progressive ambition to destroy the family

my Trade Tripper column in the 15-16 May 2015 weekend issue of BusinessWorld:

The thing is: many (but definitely not all) of those advocating for divorce want the traditional family structure of biologically related father, mother, and child be rid of. And I’ve received comments related to my previous article Divorce is just a bad idea (08 May issue) where people implicitly declared they are not against the idea of traditional marriage being done away with.

Which isn’t surprising when one remembers that “no-fault” divorce actually originated from that long-held communist objective to destroy the traditional family. As related by Donald M. Bolas (“No Fault Divorce: Born in the Soviet Union?”, 1975), the Bolsheviks regarded the traditional family as a “bourgeois” institution. When they came into power in 1917, they systematically set out to destroy it.

Interestingly, one of their first moves was to remove the classification “illegitimate children.” Ostensibly to equalize the legal status of all children, the real aim was to diminish the value of being born in wedlock.

After that came the measures to coercively redefine marriage. For communist Russia, marriage became simply a “State action,” with divorce an administrative process. Note that the no-fault divorce created by the communist State was actually unique in that it is arguably the first kind of lawsuit where the complainant (the person petitioning for divorce) does not even have to provide reasons or prove his claim. There is just no defense available for the respondent in this type of case.

And since this kind of divorce is very easy to come by, it is no surprise then to hear accounts of people being married twenty times. This was actually encouraged by the communist government, even setting up a “free love” bureau where people could hook up with like-minded partners.

The practice, according to Mr. Bolas, reached the United States and infiltrated its legal system. The US today has no-fault divorce as a norm, where every first marriage practically has a 50-50 chance of being ended by it (subsequent marriages have even higher percentages of heading to divorce).

But the question is: why would communists and their presumptive heir, today’s Progressives, be so against the idea of traditional marriages?

The key lies with our social system called “subsidiarity”: the principle that essentially says individuals should have the freedom to choose and act responsibly for themselves in achieving the common good. If individual action is too difficult, then the family steps in, then the neighborhood, then the town. Only when really necessary does the national government come in the picture. In subsidiarity’s framework, religious and non-governmental institutions play a crucial role in the formation of peoples’ character.

Progressives would have none of that. Ideologically believing they know better than you in how to run your life but history having proved them unelectable, they instead patiently engaged in the indoctrination of the bureaucracy (as well as the academe and media). And having achieved control (at least intellectually) of a substantial part of those sectors of society, they now hungrily attempt what they’ve long sought against their rivals in influence: the removal of religion and the traditional family.

Measures supportive of contraceptives, divorce, and same-sex marriage, as well as labeling religious belief as bigoted or medieval, are all designed to eradicate religion and the family’s influence on people and instead have the people dependent exclusively on government; all for the purpose of achieving the Progressive ambition of dictating the peoples’ thought and beliefs.

Relatedly, it also becomes understandable why the mere suggestion that better marriage preparation and counseling are more effective remedies than divorce would be met with violent derision by divorce advocates. Because, the fact is: it’s true.

Because funnily enough, the best marriage preparers and counselors happen to be not secular facilities (all usually under government regulation) but rather religious institutions.

Because contrary to the Progressive lie that no difference exists between religious and non-religious couples (at least as divorce rates are concerned), Georgetown University’s Center for Applied Research in the Apostolate found in 2013 that, even in “divorce-is-completely-acceptable-US,” Catholics have way lower divorce rates: “Catholics stand out with only 28% of the ever-married having divorced at some point.”

Compare this with a divorce rate of 40% for those with no religious affiliation. As one commentator puts it: “The factor making the most difference is religious commitment and practice. Couples who... take their faith seriously enjoy significantly lower divorce rates than mere church members, the general public and unbelievers.”

What’s more, University of Denver sociologists found that: “Whether young or old, male or female, low-income or not, those who said that they were more religious reported higher average levels of commitment to their partners, higher levels of marital satisfaction, less thinking and talking about divorce and lower levels of negative interaction.”

So while this column took pains to defend traditional marriage without resorting to religious arguments, it would appear that religious beliefs should indeed have a say in the public square after all.

Divorce is just a bad idea

my Trade Tripper column in this 8-9 May 2015 issue of BusinessWorld:

After my article “Divorce means freedom? Not really. Nor is it free” (April 24 issue) came out, I’ve received quite a number of comments -- many nonsensical, a few quite interesting and raising relevant arguments. None, however, addressed the particular point I made about the nature of divorce drawing in greater (if not total) State control over ordinary families. The same could be said about the economic costs of divorce, both on the family and on the country in general.

Some of the comments came from foreigners (because they indicated themselves as such), saying that my Catholic views have no place in a public debate. Which is ridiculous for two reasons: First, because this is as meritorious as me saying foreigners have no right to comment on a Philippine issue; and, second, because my article never even referred to Catholic doctrine at all.

A few did say that they’ve gone through a divorce, and are quite happy now, financially secure, with children healthy and maturing well.

Well, good for them. But many studies would find they’re the exception rather than the rule. And one can’t simply make legislation overturning centuries of tradition and history for the exception.

In any event, the studies we do have indicate that only a small percentage of divorces in the United States involved conflicted or irreparably broken marriages. The greater number of divorces arose from such relatively mundane reasons as “falling out of love” or “burnout.” Better marriage preparation or counseling can resolve this.

As for really conflicted marriages, which I repeat is in the minority, they often involve drugs, alcoholism, physical abuse, or homosexuality and these are already covered by our laws on legal separation.

Incidentally, the one ground that local divorce advocates keep using to make their case is that of “domestic violence” (or physical abuse). In reality, this actually ranks quite low as a cause for divorce (at least in the US). In some surveys they don’t appear at all.

Which makes sense. Marriage is actually a good protection against physical abuse -- it’s the jumping from one relationship to another that increases the chance of coming across an individual prone to violence. And anecdotal evidence would show that instances of incestuous rape happen more often to children with separated parents, the rapist more likely to be the new “stepfather” or “step-relative” of the child.

Still, why not allow for the transition from legal separation (that doesn’t permit remarriage) to divorce (which does)? After all, shouldn’t people have a second shot at happiness in life? Related to this is the “fire escape/safety valve” argument in favor of divorce. These are pretty good arguments, frankly. But in the end, they have to be rejected.

There are several reasons: One fundamental, a number practical. One practical reason: Should society really allow the junkie, alcoholic or abuser to inflict his behavior on a new spouse?

Another is the effect that a law constructed for a minority (i.e., really conflicted marriages) may have on the majority (ordinary marriages with its normal ebb and flow). Studies show that divorce laws (particularly “no-fault divorce”) historically contribute in encouraging the breakup of marriages exponentially through time (with US studies indicating increases at 10% annually, with one giving a high rate of 88%).

But the fundamental reason is this: Marriage has a specific definition by its nature. A definition not constructed (but merely recognized) by the State. Nor is it a social construct. Rather, the definition comes from our logical understanding of human nature independent of our wills or passing emotions and borne out as true by history.

Robert George’s formulation is quite useful for the present discussion: “Marriage is a comprehensive union, made possible by the sexual complementarity of man and woman, ordered to the all-encompassing goods of procreation and family life.”

As such, marriage has the following essential elements: heterosexual, monogamous, exclusive, and permanent. To eliminate an element is to cause a redefinition of marriage, which inevitably will present profound implications on our society.

In fact, it is this matter of redefinition that one sees the connection that the national debate on divorce has with the debate on according legal recognition for same-sex marriage.

To redefine marriage allowing for its non-permanence (i.e., divorce), one removes a principle that effectively excludes polygamous marriages. With divorce, there’s no difference between a serial and simultaneous polygamist. And yet, one must remember that marriages are also for the psychological and material welfare of children.

And since redefinition is possible, there is then no reason not to redefine marriage to include homosexual couplings -- thus removing a fundamental principle (that of marriage being directed to the procreation of and care for children) that excludes all other types of personal relationships (“throuples,” bestial, incestuous, social, etc.) that people’s fervid imaginations can care to create.

In which case, there is really no point then in having marriage at all.

K-12 and the call for liberal education

my Trade Tripper column for the 1-2 May 2015 issue of BusinessWorld:

Perhaps the phrase that best captures today’s zeitgeist is “be yourself.” Which is usually meant to underline another boomer principle: “As long as it feels good, do it.” But ultimately, such exclamations are confused. And it begs the question: What is your “self”? What is meant by “self”? One can be clever and invoke various philosophers (or, more likely nowadays, that would be “new age” gurus or “free thinkers”) to describe what that “self” is. Which is all fine and good, but it usually forgets that the choice of self has real world consequences.

This was actually homed in on me a few weeks ago when a prominent legal mind told me, in quite aghast tones (if I may add), that “even in judges’ seminars and courses, the sessions that take up crucial and foundational issues” (i.e., that seek to determine the meaning, history and context of concepts like “justice,” “equality,” “fairness” and “common good”) are dismissed by the judicial participants as “irrelevant.” Instead, what is relevant for them are technical law-school level questions: “How do you deal with a petition for quo warranto?” “How do you enforce a foreign arbitral award?” But, as stated by my friend, “issues that actually address what it is that justice demands are considered as non-issues by the very people who administer justice. Pathetic.”

Josef Ratzinger once insightfully pointed out: “Man is more than just a biological entity; he is composed also of intellect, language, history, community.” Unfortunately, today’s dominant attitude is to disregard any effort leading to a proper understanding of the self and an objective standard for that self (i.e., the natural law). Under the guise of “pluralism” and “tolerance,” society today has ironically decided to turn its back not only on traditional values but also on reason itself, deeming such to be oppressive and -- with even greater irony -- baseless.

Today, more than ever, liberal education is of great importance. It remains to be seen whether the K to 12 shift would effectively remove any semblance of classical liberal education from our system. I say “classical” because liberal education today has mostly become a farce: becoming instead a platform for anti-religion, anti-American, anti-reason, or anti-whatever type of ideological bias.

Progressives or the Left have much to be blamed for this. As Thomas Sowell puts it: “Liberal professors have trashed the liberal arts, by converting so many liberal-arts courses into indoctrination centers for left-wing causes and fads, instead of courses where students learn how to weigh conflicting views of the world for themselves.”

And this depreciation of the importance of critical thinking has been further damaged by the Left’s ruthless and relentless push for political correctness. Robert George writes: “At campuses across the country, traditional ideals of freedom of expression and the right to dissent have been deeply compromised or even abandoned as college and university faculties and administrators have capitulated to demands for language and even thought policing. Academic freedom, once understood to be vitally necessary to the truth-seeking mission of institutions of higher learning, has been pushed to the back of the bus in an age of ‘trigger warnings, micro-aggressions, mandatory sensitivity training, and grievance politics.’”

And a further twist on the progressives’ twisting of reality: the charge that religions (particularly the Catholic Church and “Catholic” educational institutions that honestly teach proper doctrine) impose absolute homogeneity of thought. Which is rubbish.

If it’s true that the Catholic Church or universities that teach Catholic doctrine properly were indeed brainwashing the faithful or students, respectively, then clearly they’re not doing a very good job at it. Anecdotal evidence or proper surveys would very likely show a healthy variety of opinions among the faithful and of the said students on the different issues confronting the country today.

Compare that to the faculty and students of the more “progressively Catholic” or secular universities where the opinions are practically homogenous and an expression of a contrary opinion (like supporting traditional families or that gender differences are not social constructs) would be met by apoplectic reactions that look like epileptic seizures.

The latter is not liberal education. It is leftist indoctrination. True liberal education is best expressed by Princeton’s recently declared policy on academic freedom: “Education should not be intended to make people comfortable, it is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom.”

Finally, in a society where emotionally troubled schoolchildren are on the rise, children who are simply unable to handle stress or the ordinary demands of life, a true liberal education has a profoundly important thing to offer that those pushing for K to 12 (which emphasizes science, technology, economics and math; all leading towards better employability) may want to consider: self-mastery.

Divorce means freedom? Not really. Nor is it free.

my Trade Tripper column in the 24-25 April issue of BusinessWorld:

There is a near universal consensus that divorce is a good thing to be had in the Philippines. Many surveys claim that a majority of Filipinos are in favor of divorce laws. And the Philippines, after all, is one of only two countries in the world that still do not allow for divorce. But near unanimity does not make right. There was a time when everyone thought the world was flat.

The arguments for divorce are varied and multi-layered. But many, to be frank, are not serious. Some want divorce simply because the Catholic Church is against it. Others’ motivation is hatred for the so-called patriarchy. Which is silly. The Philippines ranks among the world’s best for a woman to live in, fourth in the world with most women managers (including the media), had two women presidents, a presiding Chief Justice (with associate justices), and numerous members of Congress.

Instead, this article seeks to put forth preliminary thoughts on one argument relatively worthy of consideration: the idea of divorce as embodying people’s “freedom to choose.”

On “freedom,” so the argument goes, people should have the right to decide how to go about their lives. By not having a divorce law, unhappy married couples are forced to be stuck together or have to go through the more difficult, more expensive “annulment” process. A divorce law, so it is said, makes it easier for people to get out of the married state faster and cheaper, and to get on with their lives as quickly as possible.

Only, that’s not how reality works.

There are two avenues for divorce currently being proposed: the “fault” divorce (e.g., those related to legal separation or psychological incapacity) and “no-fault” divorce (i.e., “irreconcilable differences”). Both require that they be proven in court, without collusion between the parties as certified by the State. These require expenses related to gathering evidence and legal representation, all quite similar to the annulment process.

But even assuming the proposed “no-fault” form of divorce does result in the quicker grant of divorce decrees, every divorce inevitably results in the need to give alimony or support, as well as (if there are children) the matter of visitation rights.

And this is where the “freedom” argument goes awry: whereas ordinary married couples are generally free any way they want to privately pool their resources, bring up their children, use their assets, and live and work where and how they please without State interference, every divorce decree essentially stems from a public conflict that draws the State in to interfere and control the family’s future: from tracking (and even prosecuting) errant parents, determining the children’s upbringing, regulating visitation, enforcing support, and monitoring the wealth size of the estranged couple.

Furthermore, the “freedom” argument presupposes that both couples agree to the divorce. Anecdotally, a majority of the annulment cases filed were opposed or not agreed to by the non-petitioning party.

Think about that in relation to the proposed no-fault “irreconcilable differences” divorce scenario: if marriage is indeed a contract (albeit “special,” but let’s forget that for now) which both parties freely decided to enter into “until death do they part,” what then is the justification to allow one party to unilaterally terminate that contract?

In other words, where is the freedom of choice for that other “no-fault” party who wants to go on and make the marriage work?

Now relate that in economic and development policy terms: can one logically create a stable, prosperous society (i.e., necessitating planning, assembling assets, collecting wealth, training youth) whose foundation is built on a multitude of contracts designed (and at the time of entry, agreed) to be permanent but in actuality can be unilaterally terminated anytime for any reason?

The final “freedom” argument boils down to this: the government must remain neutral and give couples the individual freedom to divorce.

This position is misguided.

The government never is neutral. And when it inescapably chooses a side, it will inevitably affect all Filipinos -- whether they be for divorce or not.

If it legislates for divorce, the government essentially chooses a side that overturns centuries of established Philippine marriage tradition. Furthermore, the government’s divorce stand (advertently or not) supports the probability of increasing divorce cases (by one account, as much as 88%), divorce cases that the government will need to enforce, monitor and regulate for years (even decades) -- the costs to be charged not to the divorced couple but through taxes paid by the greater majority of married Filipinos.

The foregoing treads alongside the context of numerous studies tying divorce rates with depreciated child learning and psychological health, lowered adult productivity, and significant damage to overall economic and social development.

Three other things to note: One, no religious arguments were made here. Two, there is a need for people to appreciate a better meaning of “freedom.” And three, despite people’s strong denial of it, marriage is more permanent than is realized.

23.4.15

CAB and BBL: The two towers

my Trade Tripper column in the 17-18 April issue of BusinessWorld:

I have been saying it repeatedly. But it apparently needs saying as directly as possible: in a perfect world, handshakes would be sufficient to make an agreement. But as things can go wrong and oftentimes will, responsible people work to craft agreements (and laws) as precisely and carefully as possible to protect the interests of the parties concerned.

From that perspective, one then understands that a reading of the Comprehensive Agreement on the Bangsamoro (CAB, and its related agreements) and the present drafts of the Bangsamoro Basic Law (BBL) lead to the rational conclusion that these are not in the interests of the Philippines.

Or to put it even more bluntly: the CAB effectively serves to provide a semblance of legal cover to the Moro Islamic Liberation Front’s claim to statehood, while the BBL aims to supply the resources and implementing wherewithal to carry out that claim.

Again: all four international law elements of a State have been granted to the Bangsamoro in the CAB. That it has the elements of “people” and “government” are seen from the provisions of Articles I.1, I.2 and I.5 of the Framework Agreement. That it has the element of “territory” is seen from the provisions of Article I, as well as Article V, particularly Article V.1. The fourth element, the capacity to enter into international agreements, can be seen from the provisions of the Framework Agreement and the Power Sharing Agreement. All without a word that such agreements are to be made subject to the Philippine Constitution.

The CAB also provides police powers, taxation, and eminent domain. It even gave executive, legislative and judicial branches of government. At this point, for the Philippines to refuse “recognition” to the Bangsamoro is inutile. Nothing is stopping the MILF from declaring anytime that they are now the “Bangsamoro” State. No recognition is required from other states (as recognition is not an element for statehood). And even then, at least for political reasons, it is not farfetched to believe that the countries thanked in the “Acknowledgement” portion of the Comprehensive Agreement would readily give that recognition.

Worse, the government, by agreeing to terms in the CAB like “armed conflict,” “self-governance,” “combatants,” the “justness” and “legitimacy” of the “cause of the Bangsamoro,” and the unwitting use of the term “self-determination,” and the participation of other states in the process arguably elevated the CAB to the level of an international instrument.

As for the words “self-determination,” I have always cautioned that such “right” is usually granted by international law to counter the regretful effects of colonialism or foreign military occupation. International law professor Antonio Cassese points out that self-determination (as opposed to mere “internal self-determination,” referring to local autonomy, and economic and social development) is not available to “religious, cultural or linguistic minorities.”

So the MILF would not have qualified for such a right under international law. Which is well and good because self-determination under international law essentially means “secession.”

Unless, of course, it is voluntarily granted by a government through formal agreement. Unfortunately, the CAB and BBL are full of references to the Bangsamoro’s right to “self-determination.”

Hence, the significance of the MILF’s insistence that the CAB is an international (“executive”) agreement: because effective international agreements generally cannot be thwarted by local laws and institutions (including the Constitution) at the international level.

Even if Congress produces a BBL conforming to the Constitution, the MILF can disregard that by saying that such a BBL does not comply with a binding international agreement that is the CAB. This also weakens any possible pronouncement by the Supreme Court because the MILF would likely argue that it has international personality and not within the coverage of Philippine jurisdiction.

To reiterate: As of March 27 last year (the signing of the CAB), all the Bangsamoro needs to do is declare that it is a new state. Why it hasn’t is an interesting question. But certainly, if a BBL (in its present form) passes, then that would provide the MILF with the legal cover to receive funding, resources and legitimacy both from the government and from international donors.

And if, after a few years, for some reason, perhaps due to some fault (imaginary or real) committed by the Philippines, the Bangsamoro decides to detach from the country, the MILF has the CAB’s legal cover providing it with the elements of statehood, which it can use to gather support from other countries (perhaps Malaysia, which participated in the CAB’s signing).

It’s not too late: Congress can make a law terminating the CAB, which the President is duty-bound to enforce (Article VII, Section 17). Or it can have the CAB classified as a treaty and turned down by the Senate.

Either way, it could open up the opportunity for Congress to make a law not exclusive for any single group but one that can be best described as a comprehensive law for an all Mindanao peace and development.

Bangsamoro interview

My guesting on Erik Espina's Republika, where I discussed my take on the Bangsamoro Basic Law. The interview was broken into five parts and can be found here, here, here, here, and here, respectively.