is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
It was James Thurber who once insightfully said: “One martini is alright, two are too many, and three are not enough.” And this being a somewhat wettish December, this adage also comes to mind: “I must get out of these wet clothes and into a dry martini.”
The article last week (“A very significant announcement,” BusinessWorld, 23 December 2011) was not based on this writer’s imaginings, much as I’d like to take credit for it. The details were culled from various sources, among which are the visions of Anne Catherine Emmerich, the non-canonical gospel according to James, historians account of the environment and economy of Nazareth, and -- of course -- the Gospels according to Sts. Matthew and Luke.
Incidentally, the story pushed around by secular media that Jesus was not born on December 25 and that the said date was actually a pagan festival co-opted by the Catholic Church has been shown to be a lie by Biblical scholars. As Rev. Dwight Longenecker explains: “In 386, St. John Chrysostom preached a sermon linking the date for Christmas to the date of the Annunciation. He does so in a way that suggests that this was already an established belief. The date of the Annunciation was based on a Jewish tradition that the world was created on March 25, or Nisan 15, according to the Jewish calendar. The Jews also believed that a great man would die on the same day as his conception. The early Christians [who were of course Jews] therefore concluded that Jesus had been conceived on March 25. This made it the date of the world’s creation, and the start of the world’s redemption [and therefore the new creation]. It’s easy. If the Lord Jesus Christ was conceived on March 25, then he was born nine months later on December 25.”
In relation to which, it must be noted that Pope Benedict XVI restored the tradition of chanting the “Kalenda,” which proclaims the birth of Christ: “Today, the twenty-fifth day of December... is the nativity of our Lord Jesus Christ according to the flesh.” One has to love this Pope, uncompromising regarding the faith and simply always the smartest man in the room, whoever else may be in that room.
Speaking of smart people, Germany’s Merkel has a Phd in physics, UK’s Cameron is an Etonian and (unfortunately) Oxonian, US’ Obama is Harvard, Indonesia’s Yudhoyono studied at the US Army Command and General Staff College and Webster University, Malaysia’s Mohd Najib from Nottingham, Singapore’s Lee is a Cantabian (as all truly smart people are), while India’s Singh is an Oxbridge man. Of course, we have the most prepared and best of all possible leaders in Noynoy, and this is shown in his soaring popularity and satisfaction ratings. I’m sure those affected by Sendong are utterly grateful that he is at this country’s helm.
And speaking of Noynoy, there have been some really brainless, even insane arguments, and Pro-RH ranks highest among these. The arguments have so much condom in the brain, these guys are no longer able to think straight. Besides, how much of a free thinker can they be if they’re actually accepting the fact they’re ruled by mere advertising, compulsions, and neuroses? Perhaps if the politicians and public commentators supporting RH would admit to a purer, if less benign reason, such as the fact that they actually just want to get their hands on the millions of dollars supposedly waiting at the Millennium Development Fund, then their arguments would have a little more logic (and reality).
This leads to the depressing thought that teaching law is increasingly becoming a futile exercise. After all, how useful can legal education be when everybody, by which I mean the top officials of the land, brazenly disregard our Constitutional principles and precepts? How responsible would it be for me to encourage law students to study and work hard when our leaders insist in hiring the most mediocre of lawyers? As it stands, today’s law students are better off partying with the sons of politicians, as well as dropping by Welfareville for a dose of insanity (which seems a prerequisite for those who want to make it good nowadays).
Which then makes me think of the country’s recent loss at the WTO in the Distilled Spirits case. The Appellate Body ruling gives the impression of being an English language lesson, what with it’s protracted discussions on “like,” “similar,” “directly competing,” and “substitutable” products. But which also emphasized how basic the issues were. And, more importantly, what was the point of our defense again? Sheeesh.
In the end, as always, it is Frank Sinatra, quoting General Irving Lincoln, at the great Sands concert with Count Basie, who puts it best: “I pity those who don’t drink because when they get up in the morning that’s as good as they’re going to feel for the rest of the day.”
29.12.11
22.12.11
A very significant announcement
is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
The morning air blazed insistently and the sun seemed to have come out earlier than usual. The young girl stretched her arms and let out a slight yawn. She could hear her mother in the kitchen, her father packing his satchel to go to the temple. Mary sat on the edge of the bed, gathering her thoughts, letting the sleep get out of her head.
Anna, Mary’s mother, pokes her head into the bedroom. “Get up Mary. What’s wrong with you?” Mary lets out an impish grin and lies back again in bed. “Awww... I want to sleep more,” she teases. Anna grabs Mary’s arms and playfully pulls her. “No, get up,” she says, “I have to go to the market. I want you to fill the vats with water before I get back.” Mary follows her mother out of the room. A slice of bread was on the table and she washes her face with water. “Mary, stop splashing water all over the place!” her mother yells. “You clean that up, get more water from the well, and don’t forget to feed the chickens!” Anna continues, stepping out of the house, her words almost muffled by the shawl she wrapped around her. “Buy me figs, Mama!” Mary called out. “Yes,” was Anna’s weary reply. Joachim, Mary’s father, rushes out of his study. He kisses Mary on the forehead, gives her a hug, and runs after Anna so they could walk together.
Alone, Mary shuffles around the quiet stone house, munching on her bread, and played a little with her dolls by annoying the family cat with it. The cat runs away. Mary shrugs. Just over a year ago her life was vastly different. She worked in the temple and her daily routine alternated between service to the temple elders and study. But there was also lots of playtime with girls her age. It was a good life and Mary had no complaints. She even got to see her father at work every day. And since Nazareth was near the trade routes, there was always interesting news from Egyptian and Mesopotamian travellers who dropped by the temple.
Then she turned 12 years old. “Look here, my favorite daughter,” her father teasingly said, as she happened to be Joachim’s and Anna’s only child, “we’ll have to marry you off.” Several suitors immediately turned up. But it was the quiet Joseph, who dealt with good humor a pesky dove who insisted on sitting on Joachim’s head that sealed the deal. Joseph, however, had to go away on business for a year. In the meantime, Mary waited at her parents’ house.
Water and chicken chores done, she decided to cool off a little bit in her bedroom. It was while she was reminiscing over her favorite cousin Elizabeth, elderly but always ready with the jokes and now amazingly pregnant, that it happened.
There was a flash of white light and then there he suddenly was. He looked young, thought Mary of the strange visitor. It took her a while before she decided it was a boy she was talking to, well he seemed like a boy -- very fine features and his hair a bouncy blond. He tightly held a little trumpet. Even so, Mary had to admit feeling a little bit scared of this somewhat adorable, albeit odd, intruder. It was when he spoke, however, that cold terror hit her: Mary, you are to conceive by the Holy Spirit, give birth to a boy, you shall call him Jesus.
It took a while and a fair bit of frantic cajoling by the youth, but Mary eventually settled down. She began to think: is this kid for real? He seemed quite detailed, even giving me the baby’s name. But if I get pregnant as he described it my parents would be dishonored. Joseph too and he’d leave me. Who’d take care of me? I’d be disgraced, an outcast; assuming I don’t get stoned to death. And yet ...
Gabriel would later say it was the most nerve wracking assignment he ever had. And he was used to big jobs: engineering John the Baptist’s birth, supervising the seraphims and cherubims, and he even has the task of declaring the start of the apocalypse. But this, this waiting for the answer of a girl just approaching her teens, made him sweat. “I tell you,” he would later say with a laugh to Michael and Raphael, “my heart stopped when she was about to open her mouth and give her decision.” Actually, what Gabriel didn’t realize, because he was so nervous, was that the whole of creation, including time, actually did stop, waiting in equally great trepidation the choice that Mary was about to make. Simply put, the fate of everything created now depended on the answer of this simple unassuming girl.
Then it came: “Be it done to me according to your word.”
The morning air blazed insistently and the sun seemed to have come out earlier than usual. The young girl stretched her arms and let out a slight yawn. She could hear her mother in the kitchen, her father packing his satchel to go to the temple. Mary sat on the edge of the bed, gathering her thoughts, letting the sleep get out of her head.
Anna, Mary’s mother, pokes her head into the bedroom. “Get up Mary. What’s wrong with you?” Mary lets out an impish grin and lies back again in bed. “Awww... I want to sleep more,” she teases. Anna grabs Mary’s arms and playfully pulls her. “No, get up,” she says, “I have to go to the market. I want you to fill the vats with water before I get back.” Mary follows her mother out of the room. A slice of bread was on the table and she washes her face with water. “Mary, stop splashing water all over the place!” her mother yells. “You clean that up, get more water from the well, and don’t forget to feed the chickens!” Anna continues, stepping out of the house, her words almost muffled by the shawl she wrapped around her. “Buy me figs, Mama!” Mary called out. “Yes,” was Anna’s weary reply. Joachim, Mary’s father, rushes out of his study. He kisses Mary on the forehead, gives her a hug, and runs after Anna so they could walk together.
Alone, Mary shuffles around the quiet stone house, munching on her bread, and played a little with her dolls by annoying the family cat with it. The cat runs away. Mary shrugs. Just over a year ago her life was vastly different. She worked in the temple and her daily routine alternated between service to the temple elders and study. But there was also lots of playtime with girls her age. It was a good life and Mary had no complaints. She even got to see her father at work every day. And since Nazareth was near the trade routes, there was always interesting news from Egyptian and Mesopotamian travellers who dropped by the temple.
Then she turned 12 years old. “Look here, my favorite daughter,” her father teasingly said, as she happened to be Joachim’s and Anna’s only child, “we’ll have to marry you off.” Several suitors immediately turned up. But it was the quiet Joseph, who dealt with good humor a pesky dove who insisted on sitting on Joachim’s head that sealed the deal. Joseph, however, had to go away on business for a year. In the meantime, Mary waited at her parents’ house.
Water and chicken chores done, she decided to cool off a little bit in her bedroom. It was while she was reminiscing over her favorite cousin Elizabeth, elderly but always ready with the jokes and now amazingly pregnant, that it happened.
There was a flash of white light and then there he suddenly was. He looked young, thought Mary of the strange visitor. It took her a while before she decided it was a boy she was talking to, well he seemed like a boy -- very fine features and his hair a bouncy blond. He tightly held a little trumpet. Even so, Mary had to admit feeling a little bit scared of this somewhat adorable, albeit odd, intruder. It was when he spoke, however, that cold terror hit her: Mary, you are to conceive by the Holy Spirit, give birth to a boy, you shall call him Jesus.
It took a while and a fair bit of frantic cajoling by the youth, but Mary eventually settled down. She began to think: is this kid for real? He seemed quite detailed, even giving me the baby’s name. But if I get pregnant as he described it my parents would be dishonored. Joseph too and he’d leave me. Who’d take care of me? I’d be disgraced, an outcast; assuming I don’t get stoned to death. And yet ...
Gabriel would later say it was the most nerve wracking assignment he ever had. And he was used to big jobs: engineering John the Baptist’s birth, supervising the seraphims and cherubims, and he even has the task of declaring the start of the apocalypse. But this, this waiting for the answer of a girl just approaching her teens, made him sweat. “I tell you,” he would later say with a laugh to Michael and Raphael, “my heart stopped when she was about to open her mouth and give her decision.” Actually, what Gabriel didn’t realize, because he was so nervous, was that the whole of creation, including time, actually did stop, waiting in equally great trepidation the choice that Mary was about to make. Simply put, the fate of everything created now depended on the answer of this simple unassuming girl.
Then it came: “Be it done to me according to your word.”
15.12.11
Gay rights and marriage
is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
The problem when one wants to put into public query and analysis anything related to gay rights, particularly as to marriage, is that one nearly always runs into the inevitable accusations of intolerance, bigotry, or even stupidity. But the stupidity lies actually in not questioning and objectively examining popularly held presumptions, particularly when such have widely acquired favor in media or among the so-called fashionable circles.
But it would be good to proceed from a position that I’m sure nobody would find reason to disagree with: that the family is a very important basic social unit and to allow the deterioration of this important institution would lead to a consequent depreciation of society. As Harvard sociologist Robert Sampson found: “Family structure is one of the strongest, if not the strongest, predictor of variations in urban violence across cities in the United States.” Thus, where the institution of the family goes, so goes a country. That is why our Constitution -- wisely -- mandated that the State “protect and strengthen the family as a basic autonomous social institution.”
So proceeding on the importance of the family as a basic institution of society, the comment by Rick Fitzgibbons, director of Comprehensive Counseling Services and one who practiced psychiatry for 35 years, is pertinent: “The most important issue is the welfare of the child. Social science research has repeatedly demonstrated the vital importance of both a father and a mother for the healthy development of children and the serious risks that they face if they are raised without a mother or a father. Mothers and fathers bring unique gifts that are essential to the health of a child.”
It must be considered that the objections posited here place no reliance on religious doctrine, Catholic or otherwise. The need to reject homosexual unions finds its basis in natural law. As Princeton’s Robert P. George (Sex and the Empire State, 28 June 2011) says: “... once one buys into the ideology of sexual liberalism, the reality that has traditionally been denominated as ‘marriage’ loses all intelligibility. That is true whether one regards oneself politically as a liberal or a conservative. For people who have absorbed the central premises of sexual liberation (whether formally and explicitly, as liberals tend to do, or merely implicitly as those conservatives who have gone in for it tend to do), marriage simply cannot function as the central principle or standard of rectitude in sexual conduct x x x The idea that sexual intercourse (the behavioral component of reproduction) consummates and actualizes marriage as a one-flesh union of sexually complementary spouses naturally ordered to the good of procreation loses its force and even its sense. x x x As a result, to the extent that one is in the grip of sexual-liberationist ideology, one will find no reason of moral principle why people oughtn’t to engage in sexual relations prior to marriage, cohabit in non-marital sexual partnerships, form same-sex sexual partnerships, or confine their sexual partnerships to two persons, rather than three or more in polyamorous sexual ensembles.”
Hence the need for greater reflection regarding any expansion of gay rights. Senate Bill No. 2814 and House Bill No. 1483 are two draft laws that ostensibly appear harmless, even necessary at the outset, asking as they do for the outlawing of discrimination based on “sexual orientation.” But it is highly important that people be given the time to scrutinize and ponder over the proposed legislations and their consequences. While no bill presently seeks to allow marriage between people of the same sex, nevertheless the probability of it happening through “creeping” legislation is there. Notably, HB No. 1483 even demands unconditional employment for homosexuals in the military and educational institutions (regardless if the school is a nursery or kindergarten).
However, as George notes, “... people should care because the whole edifice of sexual-liberationist ideology is built on damaging and dehumanizing falsehoods. It has already done enormous harm -- harm that falls on everybody, but disproportionately on those in the poorest and most vulnerable sectors of our society. If you doubt that, have a look at Myron Magnet’s great book The Dream and the Nightmare: The Sixties’ Legacy to the Underclass, or some of the writings of Kay Hymowitz and other serious people who have examined the social consequences for the poor of the embrace of sexual liberalism by celebrities and other cultural elites.”
A distinction must be emphatically made between the person, and the inclination and related action. As regards every individual, respect, tolerance, and charity should indeed be given. However, natural law tells us that the homosexual inclination is “disordered,” the same (along with the action) being at variance with the basic “human goods” determined by right reason. Accordingly, same sex marriages are to be denied, it inevitably not conforming with the unitive and procreative aspects that make marriage what it is and for its consequent effect on the family and society.
The problem when one wants to put into public query and analysis anything related to gay rights, particularly as to marriage, is that one nearly always runs into the inevitable accusations of intolerance, bigotry, or even stupidity. But the stupidity lies actually in not questioning and objectively examining popularly held presumptions, particularly when such have widely acquired favor in media or among the so-called fashionable circles.
But it would be good to proceed from a position that I’m sure nobody would find reason to disagree with: that the family is a very important basic social unit and to allow the deterioration of this important institution would lead to a consequent depreciation of society. As Harvard sociologist Robert Sampson found: “Family structure is one of the strongest, if not the strongest, predictor of variations in urban violence across cities in the United States.” Thus, where the institution of the family goes, so goes a country. That is why our Constitution -- wisely -- mandated that the State “protect and strengthen the family as a basic autonomous social institution.”
So proceeding on the importance of the family as a basic institution of society, the comment by Rick Fitzgibbons, director of Comprehensive Counseling Services and one who practiced psychiatry for 35 years, is pertinent: “The most important issue is the welfare of the child. Social science research has repeatedly demonstrated the vital importance of both a father and a mother for the healthy development of children and the serious risks that they face if they are raised without a mother or a father. Mothers and fathers bring unique gifts that are essential to the health of a child.”
It must be considered that the objections posited here place no reliance on religious doctrine, Catholic or otherwise. The need to reject homosexual unions finds its basis in natural law. As Princeton’s Robert P. George (Sex and the Empire State, 28 June 2011) says: “... once one buys into the ideology of sexual liberalism, the reality that has traditionally been denominated as ‘marriage’ loses all intelligibility. That is true whether one regards oneself politically as a liberal or a conservative. For people who have absorbed the central premises of sexual liberation (whether formally and explicitly, as liberals tend to do, or merely implicitly as those conservatives who have gone in for it tend to do), marriage simply cannot function as the central principle or standard of rectitude in sexual conduct x x x The idea that sexual intercourse (the behavioral component of reproduction) consummates and actualizes marriage as a one-flesh union of sexually complementary spouses naturally ordered to the good of procreation loses its force and even its sense. x x x As a result, to the extent that one is in the grip of sexual-liberationist ideology, one will find no reason of moral principle why people oughtn’t to engage in sexual relations prior to marriage, cohabit in non-marital sexual partnerships, form same-sex sexual partnerships, or confine their sexual partnerships to two persons, rather than three or more in polyamorous sexual ensembles.”
Hence the need for greater reflection regarding any expansion of gay rights. Senate Bill No. 2814 and House Bill No. 1483 are two draft laws that ostensibly appear harmless, even necessary at the outset, asking as they do for the outlawing of discrimination based on “sexual orientation.” But it is highly important that people be given the time to scrutinize and ponder over the proposed legislations and their consequences. While no bill presently seeks to allow marriage between people of the same sex, nevertheless the probability of it happening through “creeping” legislation is there. Notably, HB No. 1483 even demands unconditional employment for homosexuals in the military and educational institutions (regardless if the school is a nursery or kindergarten).
However, as George notes, “... people should care because the whole edifice of sexual-liberationist ideology is built on damaging and dehumanizing falsehoods. It has already done enormous harm -- harm that falls on everybody, but disproportionately on those in the poorest and most vulnerable sectors of our society. If you doubt that, have a look at Myron Magnet’s great book The Dream and the Nightmare: The Sixties’ Legacy to the Underclass, or some of the writings of Kay Hymowitz and other serious people who have examined the social consequences for the poor of the embrace of sexual liberalism by celebrities and other cultural elites.”
A distinction must be emphatically made between the person, and the inclination and related action. As regards every individual, respect, tolerance, and charity should indeed be given. However, natural law tells us that the homosexual inclination is “disordered,” the same (along with the action) being at variance with the basic “human goods” determined by right reason. Accordingly, same sex marriages are to be denied, it inevitably not conforming with the unitive and procreative aspects that make marriage what it is and for its consequent effect on the family and society.
8.12.11
The still-unconvincing ICC
is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
Thursday last week I had the honor of being invited to talk as reactor at the Regional Forum on the Rome Statute of the International Criminal Court organized by LAWASIA Philippines and the Konrad Adenauer Foundation. There I again raised my doubts -- not as to the need for the ICC (which is a different issue all its own) but on the wisdom of the Philippines joining it at this time.
To reiterate, the ICC is a permanent institution, exercising jurisdiction over persons for the most serious crimes of international concern. Envisioned to operate similarly to the International Court of Justice, the Court instead exercises jurisdiction over individuals committing the crimes of genocide, aggression, serious violations of laws and customs applicable to armed conflict, crimes against humanity, and other such crimes.
Note that the Philippines signed into the Rome Statute on 28 December 2000. The Senate gave its concurrence to this on 30 August 2011, with Philippine membership effectively starting on 1 November 2011. The Rome Statute of the International Criminal Court, it must also be remembered, entered into force on 1 July 2002. The ICC, like any criminal court, however, works prospectively. Thus, any statement (assuming the local advocates for the ICC were actually serious when they said it) that with the ICC former President Gloria Arroyo can be held accountable for whatever or that the alleged human rights victims during the Marcos administration can get justice or Japan can now be made to pay further reparations to the comfort women are clearly ridiculous.
Furthermore, it must be emphasized that the Philippines is not involved in any international armed conflict. The Philippines, definitely under legal definitions that we should be espousing for the sake of national interest, is also not engaged in any internal armed conflict. The chances of the Philippines, therefore, in making use of the ICC to protect its citizens is minimal. Notably, Malaysia, Indonesia, Vietnam, or China (our co-claimants to the Spratly or Kalayaan islands) or Libya, Saudi Arabia, United Arab Emirates, or Pakistan (where a lot of our OFWs are) are not parties to the ICC. This means that we can’t even use the ICC to protect our soldiers defending our interests or OFW rights. In any event, there are other avenues available to the Philippines in that regard.
A further reason for the nonnecessity of the Philippines joining the ICC is the enactment of RA 9851 or the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.” While another ill-conceived and sloppily thought-out law, nevertheless, it does make Philippine membership in the ICC a completely un-urgent matter (if not a redundancy). In any event, we should not be distracted from the fact that any incident that occurs within the Philippines could validly and satisfactorily be dealt with by simply implementing our Constitution and domestic laws. At most, the application of international customary human rights law or provisions of international human rights conventions that the Philippines entered into, by way of the utilization of the doctrine of incorporation, as embodied in Article II, Section 2 of the Constitution, would suffice.
Which leads me to my biggest concern regarding our joining the ICC: the possibility that international criminal cases can be hurled against our police or military officers, even public officials, upon the mere instigation by any foreign or local individual. There is simply no safeguard against the probability that prosecutions can be made against our public or military officials due to ideological or foreign funded interests. Which directs us to issues of national security and national interests. Assuming that the Philippines want to assert its rights in relation to territorial integrity, particularly in Mindanao, our public and military officials will now be working warily under the cloud that at any moment they could be hauled off to and imprisoned by an international court just because charges were filed by some domestic crusading lawyer out to make a name for himself.
That is why Sudan, Israel, and the US have “unsigned” from the Rome Statute. And that is why African countries are now thinking of doing the same, frustrated as they are that the ICC, after being in operation for nine years, seems only interested in prosecuting Africans, thus raising suspicions of Western or racial bias. Hence my insistence: yes, human rights in this country should be aggressively protected. But to do so is a matter I would trust fellow Filipinos with, who knows our particular circumstances (eccentric they may be) rather than some foreigner at The Hague.
Frankly, I find it profoundly bizarre that the government is openly contemptuous of our very own Supreme Court and yet display huge confidence in a foreign “international” court. I also find it disappointing that, rather than make policies designed to advance national interests, our government instead prefers to stoop down and satisfy a single politician’s wish of joining an international tribunal.
Thursday last week I had the honor of being invited to talk as reactor at the Regional Forum on the Rome Statute of the International Criminal Court organized by LAWASIA Philippines and the Konrad Adenauer Foundation. There I again raised my doubts -- not as to the need for the ICC (which is a different issue all its own) but on the wisdom of the Philippines joining it at this time.
To reiterate, the ICC is a permanent institution, exercising jurisdiction over persons for the most serious crimes of international concern. Envisioned to operate similarly to the International Court of Justice, the Court instead exercises jurisdiction over individuals committing the crimes of genocide, aggression, serious violations of laws and customs applicable to armed conflict, crimes against humanity, and other such crimes.
Note that the Philippines signed into the Rome Statute on 28 December 2000. The Senate gave its concurrence to this on 30 August 2011, with Philippine membership effectively starting on 1 November 2011. The Rome Statute of the International Criminal Court, it must also be remembered, entered into force on 1 July 2002. The ICC, like any criminal court, however, works prospectively. Thus, any statement (assuming the local advocates for the ICC were actually serious when they said it) that with the ICC former President Gloria Arroyo can be held accountable for whatever or that the alleged human rights victims during the Marcos administration can get justice or Japan can now be made to pay further reparations to the comfort women are clearly ridiculous.
Furthermore, it must be emphasized that the Philippines is not involved in any international armed conflict. The Philippines, definitely under legal definitions that we should be espousing for the sake of national interest, is also not engaged in any internal armed conflict. The chances of the Philippines, therefore, in making use of the ICC to protect its citizens is minimal. Notably, Malaysia, Indonesia, Vietnam, or China (our co-claimants to the Spratly or Kalayaan islands) or Libya, Saudi Arabia, United Arab Emirates, or Pakistan (where a lot of our OFWs are) are not parties to the ICC. This means that we can’t even use the ICC to protect our soldiers defending our interests or OFW rights. In any event, there are other avenues available to the Philippines in that regard.
A further reason for the nonnecessity of the Philippines joining the ICC is the enactment of RA 9851 or the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.” While another ill-conceived and sloppily thought-out law, nevertheless, it does make Philippine membership in the ICC a completely un-urgent matter (if not a redundancy). In any event, we should not be distracted from the fact that any incident that occurs within the Philippines could validly and satisfactorily be dealt with by simply implementing our Constitution and domestic laws. At most, the application of international customary human rights law or provisions of international human rights conventions that the Philippines entered into, by way of the utilization of the doctrine of incorporation, as embodied in Article II, Section 2 of the Constitution, would suffice.
Which leads me to my biggest concern regarding our joining the ICC: the possibility that international criminal cases can be hurled against our police or military officers, even public officials, upon the mere instigation by any foreign or local individual. There is simply no safeguard against the probability that prosecutions can be made against our public or military officials due to ideological or foreign funded interests. Which directs us to issues of national security and national interests. Assuming that the Philippines want to assert its rights in relation to territorial integrity, particularly in Mindanao, our public and military officials will now be working warily under the cloud that at any moment they could be hauled off to and imprisoned by an international court just because charges were filed by some domestic crusading lawyer out to make a name for himself.
That is why Sudan, Israel, and the US have “unsigned” from the Rome Statute. And that is why African countries are now thinking of doing the same, frustrated as they are that the ICC, after being in operation for nine years, seems only interested in prosecuting Africans, thus raising suspicions of Western or racial bias. Hence my insistence: yes, human rights in this country should be aggressively protected. But to do so is a matter I would trust fellow Filipinos with, who knows our particular circumstances (eccentric they may be) rather than some foreigner at The Hague.
Frankly, I find it profoundly bizarre that the government is openly contemptuous of our very own Supreme Court and yet display huge confidence in a foreign “international” court. I also find it disappointing that, rather than make policies designed to advance national interests, our government instead prefers to stoop down and satisfy a single politician’s wish of joining an international tribunal.
1.12.11
Anti-trust and corruption
is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
If there’s one thing that foreign businesses hope to pass through Congress without much fuss then it must be the long-sought competition law. Which probably means Congress (and the rest of country) should indeed make a fuss about it. The fact that the imports/exports situation of our country remains uncertain up to the next year is no reason to rush any competition/anti-trust legislation. The question is not whether we should have a competition law (we should) but rather to have a competition law that will work primarily for the interests of Filipinos.
As I’ve continuously written, Filipinos should be more discerning about the strong possibility of foreign corporations sneaking up in acquiring Filipino companies or influence to the point that monopoly powers are exercised from beyond Philippine jurisdiction, constricting Filipino entrepreneurial efforts and damaging local consumer interests. Seemingly, Section 3 of Senate Bill 3197 (Competition Act of 2009) interestingly describes the enforceability of the intended law to be “within the territory of the Republic of the Philippines x x x including those that result from acts done outside the Republic of the Philippines.”
The fact that jurisdiction is had over offenses committed within the Philippines is par for the course -- territoriality being a long accepted jurisdictional premise within Philippine law. However, the latter portion of Section 3 is fascinating, flirting as it does with the probability of jurisdiction being extended by reason of either the protective principle or the passive personality principle of jurisdiction (the former being embodied, as an exception within our body of criminal law and jurisprudence, in Article 2 of the Revised Penal Code). It could also be indicative of Philippine acceptance of the emerging “effects doctrine” (more like that of objective territoriality doctrine), which is being increasingly employed by the US (e.g. the Helms-Burton and Sarbox laws, as well as the strange case of US vs. Alvarez-Machain).
Continuing from this line of thought would be the relationship of competition law with corruption. Competition policy, in its simplest form, primarily deals with the state of competition internally, that is, with regard to the state of competition within a country’s borders. However, the economic situation of the country is a bit different from, say US or the EU. There, the people who lead in business would not be the same people who comprise government. While undoubtedly relationships exists between the two groups in any country, that is a far cry from having the same families actually in control of both business and government. Which is the case in the Philippines: any cursory reading of our history would show that the same names in government and business appear over and over and over and over again. The same families would side with the Spanish against the Katipunan, collaborate with the Americans, then collaborate with the Japanese, then collaborate with each other in utter disregard of the interests of the country. It is no accident that the most heinous and damaging instances of corruption in the country were at the instigation or committed by these so-called “elite” families.
Thus, the use of the term “historic accident” in SB 3197 is curious for a law that should be forward looking. Also interesting is that when one looks at three domestic industries which are under varying degrees of trade remedy protection from the government -- if recent trade remedy petitions data are accurate, the local ceramics industry has around 50% local market share, float glass (85%), and soap raw materials such as STPP (90%) -- are, apparently under SB 3197, “monopolies.” Note that Section 6 of SB 3197 provides that: “It shall be unlawful for any firm to willfully monopolize, or knowingly attempt to monopolize, x x x Provided, That, a firm that has at least fifty percent (50%) of the relevant market as found and certified by the Department of Trade and Industry or the Concerned regulatory agency shall be deemed a monopoly.”
While there remains the fact that (as found by law professors David Trubek and Alvaro Santos) “the connection between eliminating corruption and ‘development’ remains obscure” -- thus demonstrating the idiocy of basing a government program on a slogan -- nevertheless, corruption is clearly not a victimless crime. Vast amounts of money that could have been used for education or health are instead diverted to less altruistic enterprises. It may have even diverted potential investments away from the country. Deloitte’s 4th annual “Look Before You Leap” found that “63 percent of respondents reported that the FCPA and anti-corruption issues caused their companies to renegotiate or pull out of planned business relationships, mergers or acquisitions over the last three years.”
The point here is that while indeed a competition law could be a valuable tool for the country’s development, we should take care it doesn’t get wasted due to lack of vigilance. For all we know, the proper targets of such a law are those publicly and loudly advocating for it.
If there’s one thing that foreign businesses hope to pass through Congress without much fuss then it must be the long-sought competition law. Which probably means Congress (and the rest of country) should indeed make a fuss about it. The fact that the imports/exports situation of our country remains uncertain up to the next year is no reason to rush any competition/anti-trust legislation. The question is not whether we should have a competition law (we should) but rather to have a competition law that will work primarily for the interests of Filipinos.
As I’ve continuously written, Filipinos should be more discerning about the strong possibility of foreign corporations sneaking up in acquiring Filipino companies or influence to the point that monopoly powers are exercised from beyond Philippine jurisdiction, constricting Filipino entrepreneurial efforts and damaging local consumer interests. Seemingly, Section 3 of Senate Bill 3197 (Competition Act of 2009) interestingly describes the enforceability of the intended law to be “within the territory of the Republic of the Philippines x x x including those that result from acts done outside the Republic of the Philippines.”
The fact that jurisdiction is had over offenses committed within the Philippines is par for the course -- territoriality being a long accepted jurisdictional premise within Philippine law. However, the latter portion of Section 3 is fascinating, flirting as it does with the probability of jurisdiction being extended by reason of either the protective principle or the passive personality principle of jurisdiction (the former being embodied, as an exception within our body of criminal law and jurisprudence, in Article 2 of the Revised Penal Code). It could also be indicative of Philippine acceptance of the emerging “effects doctrine” (more like that of objective territoriality doctrine), which is being increasingly employed by the US (e.g. the Helms-Burton and Sarbox laws, as well as the strange case of US vs. Alvarez-Machain).
Continuing from this line of thought would be the relationship of competition law with corruption. Competition policy, in its simplest form, primarily deals with the state of competition internally, that is, with regard to the state of competition within a country’s borders. However, the economic situation of the country is a bit different from, say US or the EU. There, the people who lead in business would not be the same people who comprise government. While undoubtedly relationships exists between the two groups in any country, that is a far cry from having the same families actually in control of both business and government. Which is the case in the Philippines: any cursory reading of our history would show that the same names in government and business appear over and over and over and over again. The same families would side with the Spanish against the Katipunan, collaborate with the Americans, then collaborate with the Japanese, then collaborate with each other in utter disregard of the interests of the country. It is no accident that the most heinous and damaging instances of corruption in the country were at the instigation or committed by these so-called “elite” families.
Thus, the use of the term “historic accident” in SB 3197 is curious for a law that should be forward looking. Also interesting is that when one looks at three domestic industries which are under varying degrees of trade remedy protection from the government -- if recent trade remedy petitions data are accurate, the local ceramics industry has around 50% local market share, float glass (85%), and soap raw materials such as STPP (90%) -- are, apparently under SB 3197, “monopolies.” Note that Section 6 of SB 3197 provides that: “It shall be unlawful for any firm to willfully monopolize, or knowingly attempt to monopolize, x x x Provided, That, a firm that has at least fifty percent (50%) of the relevant market as found and certified by the Department of Trade and Industry or the Concerned regulatory agency shall be deemed a monopoly.”
While there remains the fact that (as found by law professors David Trubek and Alvaro Santos) “the connection between eliminating corruption and ‘development’ remains obscure” -- thus demonstrating the idiocy of basing a government program on a slogan -- nevertheless, corruption is clearly not a victimless crime. Vast amounts of money that could have been used for education or health are instead diverted to less altruistic enterprises. It may have even diverted potential investments away from the country. Deloitte’s 4th annual “Look Before You Leap” found that “63 percent of respondents reported that the FCPA and anti-corruption issues caused their companies to renegotiate or pull out of planned business relationships, mergers or acquisitions over the last three years.”
The point here is that while indeed a competition law could be a valuable tool for the country’s development, we should take care it doesn’t get wasted due to lack of vigilance. For all we know, the proper targets of such a law are those publicly and loudly advocating for it.
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