11.3.15

The new lawyer for an integrated ASEAN

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

Last week, the Association of Southeast Asian Nations (ASEAN) Law Association’s General Assembly had ASEAN integration as a main focus of the discussions. At the event, Senate President Franklin Drilon threw out the following query: “As the integration calls for a free exchange of resources, we must ask ourselves: what does integration mean to the legal profession? What is its impact to the practice of law? In this era of integration, the ASEAN lawyer must learn to navigate multiple legal jurisdictions.”

Indeed. And many have tried to address this evolving world, some suggesting liberalizing the legal profession (as Senator Drilon does). Others believe in making legal education “internationalized.” And some would have it specialized technically. With due respect, I believe such ideas miss the point.

First off, liberalization of the legal profession, of having a regulatory framework allowing foreign lawyers license to appear before local tribunals, is a pipe dream. Most national Bar associations will pay lip service to the idea but privately reject it. Frankly, nobody really sees the point of having a foreigner appear as counsel for a local court case. Clients won’t either.

But, the ironic thing is that lawyers have been “practicing” law in other countries for years.

This is true for many lawyers from any country: due to developments in international law and technology, law practice has long gone cross-border. Usually calling themselves “consultants,” they work in other countries giving advice or opinions on tax, customs, trade and international law issues to multinational corporations and international organizations. Foreign (including Filipino) lawyers have also risen as top executives in the Asian corporate world. All this without needing a law license from other countries.

The fact is, lawyers have outgrown courtrooms.

A study carried out by Reed Smith and KPMG finds top global corporations increasingly looking to the legal profession to fill senior management roles. Indeed, “CEOs with a legal background are currently represented on the boards of a broad range of industries including aerospace, pharma, publishing, retail, and oil and gas.”

The number of companies headed (or recently headed) by lawyers is perhaps reflective of the increasingly responsible and ethical modern business environment. A mere cursory list will include: Goldman Sachs, Bank of America, Cisco, Toys ’R’ Us, Nokia, Home Depot, Burger King, Pfizer, Fannie Mae, Delta Airlines, among others. Locally, there’s GMA-7.

Just in the recent past, the world’s top economic institutions were all headed not by economists or bankers but by lawyers: Pascal Lamy (World Trade Organization), Robert Zoellick (World Bank), Christine Laggard (International Monetary Fund). Former US treasury secretaries (the equivalent of our finance secretary) were both lawyers: James Baker III and Robert Rubin.

University of Asia and the Pacific’s (UA&P) School of Law and Governance has been ahead of the curve in this regard, foreseeing the need to develop lawyers with the skill sets and intellectual flexibility that enable them to work in courtrooms or boardrooms, in and out of the country.

Furthermore, UA&P’s School of Law and Governance has “governance” in its name for a reason. Borrowing from Columbia Law School’s Dean David Schizer (in a Financial Times interview in 2013): “Lawyers play a critical role in policy, particularly when it comes to shaping the rules that govern business practices.”

And more significantly, Dean Schizer 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.”

Hence UA&P’s brand of legal education. US Justice Felix Frankfurter once said: “No one can be a truly competent lawyer unless he is a cultivated man.” The point is a liberal arts-oriented legal education. Doubtless one must pass the Bar exams and one should indeed prepare for it. But a law career goes beyond the Bar.

And unbeknownst to many is that a liberal arts education actually better prepares a lawyer in understanding international law, and navigating the nuances of the interplay between international law and domestic law.

Of course, legal education must seek to foster analytical skills, writing, persuasion, and sound ethical and technical judgment. But this is basic.

In today’s world of economic integration and easy access across countries, a lawyer must also have finely tuned collaborative skills, which not merely means the ability to work within teams but the capacity to work with other professional disciplines. Add too financial literacy and management skills (planning, organizing and utilizing resources), as well as culture sensitivity.

Ultimately, a lawyer must have the capacity to confront issues not merely from the black-and-white legalities but also from the perspective of the corporation or organization (or community) he is a part of.

Legal education simply cannot stop at mere technical training in law. The world (and the profession itself) has become much too complicated for that.

4.3.15

The Philippines with an ASEAN backyard

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

(The following are excerpts from my talk “The Philippines in the ASEAN Economic Community,” given during the Brown Bag Seminar hosted by the Embassy of the Republic of Korea, Feb. 24.)

ONE THING that policy makers and citizens really need to be reminded of is the concept of “adverse selection.” This refers -- roughly -- to a situation where a wrong decision is made due to the asymmetric information or even possession of wrong information by the parties.


In the context of ASEAN, the thinking seems to be that its integration this year would bring economic benefits that the country has long hoped for. But that is not consistent with reality. ASEAN brings opportunities. But that’s all it does. And thus the challenges.

Or to put it in even blunter terms, what is the point of opened markets if we don’t have the capacity to satisfy those markets? And what is the point of opening up the country for investments if the environment does not make it attractive for investors?

We are nearly last in terms of ease of doing business compared with other ASEAN countries; our power, transport, productivity, and infrastructure are nothing to brag about; and despite alleged improvements in relation to competitiveness, the rule of law and protection of property are a concern in most major studies. Then there is traffic.

Our exports also need work: our 2013 export numbers, for example, show a mere US$54 million paltry compared with Vietnam’s (US$129), Indonesia’s (US$199), Thailand’s (US$229), and Malaysia’s (US$230.7). For FDIs, the Philippines is celebrating its 3.86 (in billions US$) showing in 2013, even though the same is spectacularly short of Vietnam’s (8.9), Malaysia’s (12.3), Thailand’s (13), Indonesia’s (18), and Singapore’s (60.6).

Furthermore, most citizens are not even aware of the developments in ASEAN and that, sooner or later, a decision would have to be made on the Trans-Pacific Partnership and the Regional Comprehensive Economic Partnership.

The Philippines has been so enmeshed with its domestic political developments that it failed to give proper focus to international economic developments that forge on regardless of what happens domestically and definitely have a significant impact on the lives of its citizens.

But perhaps that is the key to the problem. That many Filipinos (like many in the region) have not considered ASEAN as “domestic.” By this, I mean that we have not imbibed the mindset that ASEAN is our backyard, in the manner that Cebu or Davao is part of our neighborhood. In short, ASEAN is treated as foreign, far away, distant. This should change.

Almost 81% of our trade is with APEC, with ASEAN accounting for 20%. So while international trade, as we have been told, is global, geographic and historical realities nevertheless remain to be relevant.

And yet, technology and transportation developments have made it so that even the humblest of our citizens can engage within this setting. That they are unable to do so is not because of their lack of capacity or opportunity but because of the lack of information, which then leads to a lack of confidence.

Even in my own profession, which is law, there are many lawyers who still see international law as “foreign.” This despite the fact that our country, from its very inception, has always considered international law to be part of the laws of the land.

Government and policymakers (as well as media) have to encourage the mindset that these things are available, are within reach, and provide opportunities. This means having a professed international outlook paralleled by a pragmatic business orientation and competence.

Now, not to give cross-signals, we also have to point out the complexities involved in an ASEAN that encourages regional trading arrangements. Considering that local businessmen have continuously raised concerns regarding the Philippines’ capacity to keep up with its multilateral trading commitments, the increasing number of FTAs lead to a complexity that can be seen on the surface alone: the rules of origin, dispute settlement jurisdictions, non-tariff subjects such as market access and trade facilitation, sanitary and phytosanitary measures, technical barriers to trade, and (as always) the issue of smuggling. And the foregoing doesn’t even approximate the intricate effects that global finance has on trade.

My view on this has always been that the more technical and complicated a subject, the more important that someone has a generalized training that can match the complexity.

Others would go the different route: if a thing is complex, then hire specialists. But that doesn’t work for me for two reasons: hiring specialists to work on international trade will limit the nature of the analysis. It will also narrow the perspective for the recipient of the analysis, focusing on technicalities rather than on what’s really important.

Bottom line, the more complicated the environment is, get policymakers or analysts (even lawyers) with a truly well developed liberal education. They will have more analytical skills and appreciation for truth.

22.2.15

Attack of the killer Catholic Church!

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

It finally happened. Two weeks ago, the respected international news magazine The Week That Wasn’t Really ran a cartoon showing Pope Francis allegedly killing a gay pigeon. How the pigeon was considered gay was not brought up, but it angered many Catholics as another example of the media’s obsession to portray the Church as villainous and intolerant.

The day after the cartoon was published, Catholic militants attacked the TWTWR office and massacred the entire staff. Reacting to the news, Salesian priest Fr. Chito Dizon urged all not to immediately label the attackers as Catholics. “So what if they shouted ‘Totus Tuus’ and then took time off during the middle of the attack to pray the Angelus at noon? That doesn’t make them necessarily Catholic. They could be Hindus. Or Rastafarian. It’s possible they merely used the name of the Church in committing the atrocity.”

Nevertheless, Fr. Bobby Magsino, a Vatican spokesman and member of the shadowy and controversial Opus Dei [Sorry, I forgot to mention “ultra-conservative” -- JG] justified the attack, describing “the encounter” as that of “freedom fighters acting in self-defense” compelled by years of “historical baggage” in the form of “media and academic oppression suffered by the Catholic Church.”

Nevertheless, Fr. Magsino urged all to instead move forward and forget the deaths ever happened. “Peace is what’s important,” he said.

Meanwhile, interviewed by EWTN, Lito Deyvid of Pro-Life Philippines denounced those asking for justice for the TWTWR victims, calling it as “grandstanding” against Catholics. They are “anti-religion and against peace,” he said. Furthermore, “those asking for total war have not lived in the poor parishes and can’t comprehend the daily insults and attacks the faithful have been subjected to.”

Arwin Hilario, congressman from McBayan partylist, was even more earnest: “Forget the killings. Criminal laws, like sovereignty or gender, are mere social constructs. The real problem is the oligarchy that imposes their non-developmental agenda. The rich know nothing about ordinary religious folk, who perform apostolate work under conditions of poverty. It’s very difficult and complicated. Also, it’s obviously Gloria Arroyo’s fault.”

“I support those Catholic militants,” added Mr. Hilario, "they spoke truth to power". When told that the TWTWR victims were ordinary poor working people, with children, he replied: “But let’s also remember that many Catholics were killed by Queen Elizabeth I. The Buddhists killed many Catholics too. The Romans fed Catholics to lions. So context, people!”

This was supported by Trina Montes, a comparative women’s rights professor from the University of the Philippines, saying that we should not be too quick to condemn the killing by the Catholics. “The Hittites, for example, were also committing massacres 3,000 years ago.”

In fact, “they were the first to use germ warfare,” she added.

Ironically, the TWTWR incident was followed by a mauling that Catholics gave to a group of Mormons last Sunday. It appears that Catholics suddenly started occupying (without permission) a portion of the Mormon Temple along White Plains. When the members of the Church of Latter Day Saints (as Mormons are officially called) started to enter their Temple last Sunday, the Catholics roving around the compound started beating them up, forcing the Mormons to go somewhere else to worship.

Ms. Haidi Dulong, chief negotiator for the Mormons, blamed the Mormons for what happened: “So what if the Catholics were squatting? The Mormons should have followed protocol and coordinated with the squatters first before entering our own compound. The Catholics were surprised. Wouldn’t you? Read my books first before you speak to me on this issue.”

When told that the Catholics still continued to beat up the Mormons for several hours even after the latter identified themselves as being there to do Sunday worship, Ms. Dulong replied: “Let’s wait for the results of the Catholic investigation. Besides, the enemy... este, Mormons were also at fault. Several Catholics suffered hurt feelings.”

Jesuit scholar Fr. Joachim Tambori predictably articulated erudition: “I wouldn’t say the Catholic Church is right on this issue. In fact, I don’t know of any issue where the Catholic Church has ever been right. There are many things to consider. We should always put ourselves in others’ shoes because people have the international human right to shoes.” Rappler readers immediately declared this made them feel happy and intelligent.

Finally, one of the Catholic militants, Erwin Richard Perez, issued a statement: “You grieve for the TWTWR dead. But many have tried to subjugate the Church, yet we’re still here. You can wage war against us but we will just baptize more babies who will grow up to continue the Crusades. So give us the peace that we demand or there’ll be violence of biblical proportions (i.e., dogs and cats living together -- mass hysteria).”

“However,” the Catholic militant was quick to add, “always remember that Christianity is the religion of peace. Anybody who disagrees with that will have the jeebus excommunicated out of him.”

[And ... I ran out of crap to write.]

Bangsamoro and the myth of historical baggage

my Trade Tripper column in 06 February 2015 issue of BusinessWorld:

It probably indicates the state of national discourse here in the Philippines that I apologetically need to start with caveats (albeit sincerely given): Yes, I am very much a believer that every Filipino should have access to all the rights afforded by our political system and to every opportunity provided by a just society. Inequality, poverty and injustice are never to be tolerated. Finally, I believe that all the people in this country, whether Muslim or Christian or of other beliefs, should be allowed to live in peace, harmony and prosperity.

Having said that, we really have to deconstruct the confused drivel being heaped by the media (traditional or social) regarding the events in Mamasapano. Among such is that those in the Philippine National Police Special Action Force (PNP-SAF) only have themselves to blame for their colleagues’ deaths due to “lack of coordination” and planning. The PNP already splendidly rebutted these absurdities, so no need to discuss them here. Besides, what coordination is needed when Mamasapano is Philippine territory for which the PNP has jurisdiction?

On the other hand, a truly irritating notion (and one specially favored by the Left) is that of “historical baggage”: that the Moro Islamic Liberation Front’s (MILF) actions were in a way justified by decades of iniquities or hurts imposed by an “imperial Manila.” This is actually used to buttress the argument that the Mamasapano massacre should not derail the passage of the Bangsamoro Basic Law. After all, the best way to honor the SAF 44 dead is to give their killers what they want.

Nevertheless, historical baggage is referred numerously in the Comprehensive Agreement: “social, economic and political inequalities”; “historical injustice”; “cultural inequities.” Expectedly, the Philippine government unquestioningly accepted these Bangsamoro charges of “legitimate grievances.”

But as to this “historical baggage” allegation, why stop with the hurt of the Muslims? After all, there are also the hurts of the indigenous peoples. The latter could justly argue as having an even more urgent (and older) claim to government attention, considering that they comprise 17% of the national population (compared to the Muslims’ 5%) and a property stake equivalent to 20% of the Philippine land area.

But why stop there? Let’s include the hurts committed by the Spanish on the peoples of Luzon and the Visayas. The wrongs by the Americans, Japanese, Chinese. But why stop there? Let’s include the offenses done to our overseas workers by Arabs or by Singaporeans.

But ultimately we know it’s pointless.

The charge of “imperial Manila” itself is so old the people who coined it are all dead. Furthermore, in this country and specially after the enactment of the Local Government Code, all regions have always been governed by local officials not appointed by Manila, but elected by the very people in those areas.

Thus, MindaNews on June 2 last year reported: of the 234 elected representatives to the House of Representatives, Mindanaoans themselves chose 59. Add to this the nine Mindanaoan party-list representatives who were voted nationally. Notably, as further reported by MindaNews, of the 68 Mindanao members of Congress, “one is a billionaire, 66 are millionaires and only one has a net worth of under a million pesos.”

Remember that Manny Pacquiao is a congressman from the South. And, as if it needs mentioning, Mindanao has had its fair share of senators, Supreme Court justices, Cabinet members. And Muslims have the privilege of exclusive recourse to Shariah law.

And while Mindanao provinces are indeed among the poorest in the country, it has to be also considered that this poverty is suffered not by Muslims alone (who comprise 20% of the population in Mindanao) but by Christians too (at 70%). And despite those regions being rich in fish, marine resources and minerals, nevertheless, it depends substantially from that despised national government for its operating income (for the Autonomous Region in Muslim Mindanao, or ARMM, that amounts to 98%, which in 2014 reportedly amounts to P24 billion).

But then Masbate, Samar, Ifugao, Bukidnon, Bicol and Negros Oriental are also among the poorest regions in the country. As far as I know, nobody has yet filed for a Bangsa-Bicol. The Philippines itself is the third poorest in ASEAN (after Laos and Cambodia).

As to the claim that poverty in the South is due to violence, that may be; but Muslims are a generally peaceful people, tolerant of those with other beliefs. In reality, much of the violence has more to do with inter-family or inter-tribal conflicts, private property disputes, or killings between warring political families (see the first Maguindanao massacre as example) but not inter-religious.

Finally, we must stop equating the Bangsamoro Basic Law with peace. It is just one proposal among other mechanisms that may lead to it (others could be the better implementation of ARMM, or re-invigorating the Brunei-Indonesia-Malaysia-Philippines East ASEAN Growth Area or BIMP-EAGA, etc.).

So there’s no reason we need to rush and not have a closer look at the entire situation. And examine other options to finally achieve what we all want: lasting and just peace.

10.2.15

My House testimony on the SOGI anti-discrimination bill

Statement on the proposed draft consolidated Bill “Prohibiting Discrimination on the Basis of Sexual Orientation or Gender Identity (SOGI), Providing Penalties Therefore and for Other Purposes”

* Delivered orally before the Committee on Women and Gender Equality, House of Representatives, 10 February 2015.

1. The comments herein are intended as brief preliminary thoughts on the proposed draft consolidated bill (hereafter referred to as the “Draft Law”), without prejudice to a possible further later exposition on the points outlined below.


Nature of international human rights law


2. There is, as yet, no binding international law obligation relating to sexual orientation or gender identity, or as to that designated as LGBT (i.e., lesbian, gay, bisexual, transgender) “rights”. Certainly no written international instrument that expressly mentions sexual orientation or gender identity “rights” constituting a binding international obligation have been entered into by States at the international level. Resolutions, whether of the General Assembly or the Human Rights Council, it must be emphasized, do not form binding obligations on States (and this includes the so-called Yogyakarta Principles).[1] Having said that, at the United Nations level, almost 100 State members have either rejected or otherwise refrained from expressing support for the so-called LGBT “rights”.


3. Even as a matter of international customary law, with its requirements of practice and opinion juris, it would be hard to argue for LGBT rights considering that 78 States have, in fact, expressed the opposite, labeling the same criminal.[2] As pointed out by one social commentator: “In the first place, and unlike the main elements of the Universal Declaration of Human Rights, sexual liberation has no roots in the traditional cultures and religious traditions that shape the lives of the vast majority of people in the world.”[3]


4. But even had there been such a legally binding obligation at the international level, it is in the nature of international human rights law that States will have wide latitude as to its implementation. Many too readily presume the universality of international human rights, ignoring the fact that its relatively recent existence poses problems in implementation at the State level. Specifically for sexual orientation and gender identity, such “are vague and ill-defined, and have come to encompass a whole range of morally problematic ideas, including same-sex marriage, adoption by gay and lesbian couples, and presenting the homosexual lifestyle positively to schoolchildren.”[4]


5. There is also the fact that international human rights law is quite political.[5] The United Nations Committee on the Elimination of Discrimination Against Women (which oversees the Convention on the Elimination of All Forms of Discrimination Against Women), for example, has proven to be quite controversial, seen by many as promoting Western-style feminism. The Convention on the Elimination of All Forms of Discrimination Against Women itself has been viewed, by the Women for Faith and Family for one, as being “destructive of rights basic to every human being and the rights of cultural self-determination of nations,” albeit though presenting itself as protecting the rights of women.[6]


Human rights cannot deviate from natural law


6. A point that I believe is beyond contention is that human rights are the "inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being."[7] In short, our rights are based on our appreciation of what it means to be human. Human rights, as in natural law (a universal, objective standard of right and wrong based on right reason, independent of man-made laws[8]), are universal (applicable to everyone and everywhere), and exist in both national and international law.[9]


7. Human rights is, in fact, closely related to that of natural rights,[10] a thought further illustrated by noted philosopher Jacques Maritain: “The philosophical foundation of the rights of man is natural law” and that “the true philosophy of the rights of the human person is based upon the true idea of natural law”.[11]


8. Accordingly, as human rights is based on natural law, then it can be fairly said that there can be no human right contrary to natural law: “The moral absolutes give legal reasoning its backbone. xxx These moral absolutes which are rationally determined and essentially determinate, constitute the most basic human rights.”[12]


9. International law itself recognizes the significance of natural law in relation to the matter of rights. One can easily see this in the creation of the United Nations (of which Jacques Maritain played a not insignificant role), as well as important documents on human rights such as the 1948 UN Declaration on Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, amongst others (incidentally, these international instruments are mentioned in the Draft Law even though none make direct express reference to sexual orientation or gender identity rights).[13] Thus, one basis of international law is said to be the natural law, upon which our concepts of jus cogens (as well as erga omnes) is rooted.


10. The Philippine legal system itself considers “the United Nations instruments to which the Philippines is a signatory, namely the UDHR ... binding upon the Philippines, the ICCPR and the ICESCR.”[14] This has been expressly stated by the Supreme Court in Republic vs Sandiganbayan, where then member of the Court Reynato Puno cogently and methodically traced the history of the concept of natural law and elaborates on the central position it holds in the Philippine legal system.[15] The significance of the foregoing is that it expresses a fact about the Philippine legal system: that our concept of human rights stem from natural law.


11. Recently, of course, there has been a move to present our legal system as purely coming from the perspective of the positivist theory of law. This is perhaps understandable when one considers that a substantial number of our law professors were brought up appreciating the contributions of liberal academic legal institutions in the US. But this problematically compels one to essentially take the view that as Congress could provide a right, then Congress can take that right away.


12. The foregoing, however, runs counter to our established belief that human rights as universal and immutable, as can be seen from the natural law inspired provisions of the Constitution such as Articles II and III thereof. Legal philosopher Javier Hervada says it at his concise best: “Outside the fulfillment of natural law, there is no right.”[16]


13. Thus, this insight from the Supreme Court is relevant for the issue at hand: “not everything that society – or a certain segment of society – wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. xxx [To do so will have] the effect of diluting real human rights.”[17]


Constitutionalism as duty of all


14. It is also relevant to note that Article VIII Section 1 of the 1987 Constitution has broadened the scope of judicial review, expanded by the adoption of Article VIII, Section 1 of the 1987 Constitution, which defines judicial power as “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of Government.”


15. “Grave abuse of discretion” is frequently defined as "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction."[18] In addition, explanations of the concept of “grave abuse of discretion” equate the same to where power is exercised “in an arbitrary and despotic manner by reason of passion and hostility.”[19] The foregoing also must be accomplished with the Constitution’s directive that the State “promote the common good … [and] truth.”[20]


16. The point here is that the mandate given to the Supreme Court also results in the logical corollary duty on the part of Congress: that the broad discretion that the legislature enjoys in enacting laws is not absolute but must follow, among others, such standards on legislation being “sound”, fair, and reasonable.


17. Put another way, constitutional law, properly understood, does not give to the Supreme Court the exclusive power to determine the constitutionality of an issue. It is not meet or proper that the other branches of government pass such questions to the Supreme Court.18. Congress is certainly authorized, empowered, and mandated to pass only legislation that in its rightful use of judgment is in compliance with our Constitution and in accordance with right reason.


Ambiguity of Draft Law


19. Beyond the fundamental issues relating to international law, the nature of rights, and constitutional interpretation, there are also other more specific issues that need to be addressed in the Draft Law, particularly with regard to ambiguity and the difficulty of implementation.


Identity of those protected


20. At the outset, it would be apt to point out that Facebook alone identifies at least 51 genders[21]. Gender experts, however, vary: there could be as many as three or even as many genders as there are individuals.


21. The point here is that, no scientific consensus exists that homosexuality is genetic.[22] And there is no consensus on the nature and origin of sexual orientation.[23] This is significant. Because in order for this penal law, meaning the Draft Law, to be effective it must be able to:


a)      identify properly those covered by the protections it offers; and

b)      capable of being implemented by the police or judicial system in terms of evidence.


22. True, Section 3.b. and 3.c. of the Draft Law does define “gender identity” and “sexual orientation” but it does so in an unfortunately ambiguous and superficial way. Much of what can constitute identity or orientation cannot be seen through clothing or even at skin level. And yet, we are supposed to punish individuals (e.g., employers, faculty administrators, business owners, ordinary service employees, etc.) for failing to identify the very particular kind of people covered by a special law.

23. There is also the difficulty of proving that one has indeed been discriminated due to gender identity or sexual orientation (and not for any other reason), and proving that such a status of gender identity or sexual orientation did exist at the time of the supposed discrimination. In other words, there is the failure to identify the evidence that must be presented to our courts that at the time of the supposed discrimination taking place the person making the claim is indeed covered under the purview of the provisions of the Draft Law and that the person or persons committing the discrimination did so because of that complainant’s sexual orientation or gender identity and not for another (justifiable) reason. This difficulty is heightened because of the possibility that sexual orientation can unilaterally change through time.[24]


24. It is to be noted that the foregoing ambiguities cannot even be cured by an administrative rule or regulation due to the lack of appropriate standards or legally perceived boundary.


Extent of protection from discrimination


25. Then there is the paradox that by seeking the removal of discrimination, that discrimination is the result. Section 3.a of the Draft Law defines “discrimination” again in an unfortunately ambiguous way, to the point that the Draft Law seeks to provide discrimination in relation to “all rights and freedoms”.


26. This, however, as I said, paradoxically creates its own set of discriminations. Not all citizens enjoy equal rights and freedoms. And yet, a tiny portion of the population is to experience what the rest of the population does not enjoy.


27. I reiterate that the LGBT population is quite limited. A recent US study pegs its own LGBT population to between 2-5% of population.[25] The Philippine demographic may not be too far off.

28. Fundamentally, and this is something that many perhaps do not appreciate, our system of laws is built on discrimination. We distinguish and we make judgments: from who can run for Congress to who can practice law or medicine; can someone drink alcohol, to who can drive a car. What our laws, do not allow for is wrongful discrimination, built on unequal treatment between those belonging to a similar class. As Richard W. Garnett, Law Professor at Notre Dame Law School, says: "it is not true that ‘discrimination’ is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it -- say, through its expression and spending -- even when it is wrong. ‘Discrimination,’ after all, is just another word for decision-making, for choosing and acting in accord with or with reference to particular criteria."[26]

29. The eccentric thing about the Draft Law is that it purports to say that there is no difference between the rest of the Philippine population and the LGBT and then proceeds, as I noted above, to provide rights and protections to the LGBT that the rest of the community does not enjoy (which is the total absence of legal discrimination). Not only is this against the essence of democratic rule, it also illogically violates the doctrine of equal treatment, as well as the idea of human rights being universal.[27] Rather than equality of rights, we have a balkanization of rights for groups of people rather than for all people.

Effect on other laws


30. The Draft Law also needs further study on the probable effect it will have on other laws. Judging by the usual listing that LGBT advocates have regarding the “rights” they are pushing for, such will involve laws relating to employment, military service, adoption, marriage, student activities (such as attending school dances with same-sex dates and dressed in gender nonconforming ways if they choose), parenting, schools, and government identity documents.[28]


31. In which event, the implications and possible conflicts such will have vis-à-vis the constitutional protections relating to religion, free expression, academic freedom, and contract will need to be examined and address, along with its relationship to family (including marriage, adoption, succession), labor, education, tax and social services, military, and health laws, amongst others. The affected stakeholders need to have a say and be consulted because, as pointed above, the possible unintended effect is discrimination in order to ostensibly rid of discrimination.


SOGI and natural law


32. It has to also be considered that the identity of our society can be seen in our Constitution. And our society and its Constitution were both created not within a vacuum or through a veil of ignorance, but with a peculiar context, circumstance, and history.


33. It is a given that our Constitution has been inspired by the text of the US Constitution. Clearly, the people who wrote our Constitution knew the context in which they were writing it (particularly coming off the Martial Law experience, as an example) but also the context in which the US Constitution was written.


34. One particular context that must be considered is the background of the US Constitutional Convention delegates, particularly the religious and philosophical beliefs of the delegates. Most were Christians (only two were Catholics, the rest were Protestants). At the very least, all believed in a deity or were theists of some sort. Also, the delegates were certainly quite aware of Aristotelian thought, and quite definitely the ideas of the Enlightenment thinkers such as Locke and Rousseau. That would mean then that the US Constitution was framed with the idea of man’s telos or purpose, of self-evident natural rights, and of the common good (or “general will”).


35. As such, the explanation by noted legal philosopher John Finnis on the relationship between laws and homosexuality is of interest: “Let me begin by noticing a too little noticed fact. All three of the greatest Greek philosophers, Socrates, Plato and Aristotle, regarded homosexual conduct as intrinsically shameful, immoral, and indeed depraved or depraving. That is to say, all three rejected the linchpin of modern ‘gay’ ideology and lifestyle.”[29]


36. “At the heart of the Platonic-Aristotelian and later ancient philosophical rejections of all homosexual conduct, and thus of the modern ‘gay’ ideology, are three fundamental theses: (1) The commitment of a man and woman to each other in the sexual union of marriage is intrinsically good and reasonable, and is incompatible with sexual relations outside marriage. (2) Homosexual acts are radically and peculiarly non-marital, and for that reason intrinsically unreasonable and unnatural. (3) Furthermore, according to Plato, if not Aristotle, homosexual acts have a special similarity to solitary masturbation, and both types of radically non-marital act are manifestly unworthy of the human being and immoral.”

37. Accordingly, there is an inherent absence of the element of the “common good” so necessary in our constitutional system, inasmuch as homosexuality itself would involve the partners “treating their bodies as instruments to be used in the service of their consciously experiencing selves; their choice to engage in such conduct thus disintegrates each of them precisely as acting persons.” This is contrary to reason and the idea of human dignity that natural law seeks to protect and is embodied in our Constitution.

38. If, then, what Finnis says is correct, then we have a proposed legislation that not only seeks to recognize a matter that contradicts natural law (as well as the tenets of the Constitution, particularly of the common good) but even, as I pointed out above, gives rights to a small portion of the population over that of other citizens. Fundamentally, this opens up the Draft Law to being categorized as one that is “arbitrary”, "capricious or whimsical exercise of judgment”, contrary to reason, amounting to “grave abuse of discretion”.


39. Having said that, this is not to say that wrongful discrimination should be tolerated. It shouldn’t. But there are two things to be considered:


a)      The provisions of the Constitution, particularly its Bill of Rights, should be allowed and trusted to resolve whatever concerns that the Draft Law is concerned about; and

b)      In this issue, complicated as it is, the Congress would do well not to ignore the 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.

40. Instead, with the Draft Law, we are creating further complexities: of men who say they are women using women’s restrooms, of girls coming to school using boy’s school uniforms or sports jerseys, of persons demanding to be identified contrary to what is recorded in public documents. The point here is not our passing feelings or sentiments but that legislation and public policy build a society based on truths about the human person and human dignity rather obfuscate matters with unproven social claims that could possible pave the way for the confusion of future generations.

41. Finally, of common good (and subsidiarity's role in it), the best definition can be found 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."


42. Note the repeated mention of the attainment "for themselves" by the people. The government, including this Congress, is encouraged not to involve itself in every facet of human interrelationships. Sometimes, as in the present case, it is better to trust in the inherent wisdom of the people and the Constitution rather than create a law incapable of grasping a matter of immense social, legal, scientific, medical, psychological, economic, and political complexity.





[1] a fact pointed out by the Supreme Court in Ang Ladlad vs Comelec, G.R. No. 190582, , 08 April 2010: “At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.”
[2] see listing by the International Lesbian, Gay, Bisexual, Trans and Intersex Association; http://76crimes.com/76-countries-where-homosexuality-is-illegal/, retrieved 08 February 2015
[3] Exporting Gay Rights, RR Reno, First Things, February 2012
[4] Human Rights, Sexual Orientation, and Gender Identity at the UN; Austin Ruse, Public Discourse, November 2012
[5] Four Human Rights Myths, Susan Marks, LSE Law, Society and Economy Working Papers 10/2012; London School of Economics and Political Science
[6] http://www.wf-f.org/CEDAW.html
[7] See Sepúlveda, Magdalena; van Banning, Theo; Gudmundsdóttir, Gudrún; Chamoun, Christine; van Genugten, Willem J.M. (2004). Human rights reference handbook (3rd ed. rev. ed.). Ciudad Colon, Costa Rica: University of Peace. ISBN 9977-925-18-6.
[8] This is a commonly accepted definition, sometimes attributed to Javier Hervada (see Criticial Introduction to Natural Law, 2006)
[9] See Nickel, James (2010). "Human Rights". The Stanford Encyclopedia of Philosophy (Fall 2010 ed.).
[10] Jones, Peter. Rights. Palgrave Macmillan, 1994, p. 73.
[11] Man and the State, Jacques Maritain, University of Chicago Press, 1951, Chap. IV, pp. 76-107.
[12] Natural Law Theory, Natural Law and Legal Reasoning, John Finnis, 1992, pp.148
[13] Justice Puno, Separate Opinion, Republic vs Sandiganbayan, GR No. 104768, 21 July 2003; see also Morsink, Johannes (1999). The Universal Declaration of Human Rights: origins, drafting, and intent. University of Pennsylvania Press. ISBN 978-0-8122-1747-6
[14] Justice Puno, Separate Opinion, Republic vs Sandiganbayan, GR No. 104768, 21 July 2003; citing Fernando, E., Perspective on Human Rights: The Philippines in a Period of Crisis and Transition (1979), pp. 1-2, citing Borovsky v. Commissioner of Immigration, et al., 90 Phil. 107 (1951); Mejoff v. Director of Prisons, 90 Phil. 70 (1951); Chirskoff v. Commissioner of Immigration, et al., 90 Phil. 256 (1951); Andreu v. Commissioner of Immigration, et al., 90 Phil. 347 (1951).
[15] G.R. No. 104768, July 21, 2003.
[16] Underscoring supplied; Criticial Introduction to Natural Law, Javier Hervada, 2006, p.137
[17] Ang Ladlad vs Comelec, G.R. No. 190582, 08 April 2010
[18] See, for example, De Vera v. De Vera, G.R. No. 172832, April 7, 2009.
[19] Ibid.  Citation omitted.
[20]  see the Preamble
[21] What Each of Facebook’s 51 New Gender Options Means; Daily Beast, 15 February 2014
[22] see for example the result (or non-results) of Dr George Rice of Canada’s University of Western Ontario study, reported in the Independent, (U.K.), April 23, 1999, p. 5; as well as Science, April 23, 1999, pp. 571, 665–667.” Note, however, Paul McHugh, University Distinguished Service Professor of Psychiatry at Johns Hopkins University (in his article Surgical Sex, First Things, November 2004): “Johns Hopkins Psychiatry Department eventually concluded that human sexual identity is mostly built into our constitution by the genes we inherit and the embryogenesis we undergo.”
[23] Sexual Orientation and Homosexuality, American Medical Assocation; retrieved 8 February 2015; http://web.archive.org/web/20130808032050/http://www.apa.org/helpcenter/sexual-orientation.aspx
[24] see Sexual Orientation, Gender Identity, and Employment Law, Paul McHugh and Gerard V. Bradley, Public Discourse, July 2013
[25] Sexual Orientation and Health Among U.S. Adults: National Health Interview Survey, 2013
[26] Confusion About Discrimination, Richard W. Garnett, Public Discourse, April 5, 2012
[27] A short word on “tolerance”: “The root meaning of the word [tolerance] suggests what the virtue involves. The Latin tol- is related to a group of words having to do with carrying a burden: German dulden, to be patient, to endure; Old English tholian, to suffer; Latin tuli, I have borne. When we tolerate we bear with someone or something; we bear the existence of a wrong. We do so because, given the circumstances, to protest would invite a greater wrong. There is a time for public correction, and a time for quiet endurance and, if the opportunity arises, private correction.” (Tolerance and reciprocity, Professor Anthony Esolen, Public Discourse)
[28] American Civil Liberties Union; retrieved 8 February 2015, https://www.aclu.org/lgbt-rights
[29] Law, Morality, and "Sexual Orientation" John Finnis; 1997