is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
This is in continuation of our reflections on the country’s unfortunate (but quirkily illuminating) loss in the WTO case Philippines -- Taxes on Distilled Spirits (docketed as DS396 and DS403). The issue in that case essentially is whether the excise tax laws of the Philippines on distilled spirits violated Article III.2, first and second sentence, of the GATT. Both the panel which tried the case and the Appellate Body said yes.
The first thing, then, needed to be discussed is the “national treatment” principle, which GATT Article III embodies. In the simplest of terms, national treatment prohibits less-favorable treatment to imported goods in relation to similar local products. This same concept was also the focus in another (albeit victorious) WTO case: DS371, otherwise known as Thailand -- Customs and Fiscal Measures on Cigarettes from the Philippines. That case had to do with Thai taxes imposed on imported cigarettes.
As described by Brendan McGivern of White and Case: “This dispute was adjudicated under the two core national treatment disciplines of GATT Article III: the so-called ‘charge’ provision of Article III:2, and the ‘non-charge’ provision of Article III:4. Thailand’s measures were found to be inconsistent with both disciplines. Under the ‘charge’ provision of Article III:2, imported products cannot be subjected to internal taxes in excess of those applied to like domestic products. The jurisprudence of the GATT and the WTO has interpreted this obligation strictly. In the present case, the Appellate Body affirmed an earlier ruling that ‘even the smallest amount of ‘excess’ is too much.’ The Philippines successfully challenged a Thai law that granted a VAT exemption for resellers of domestic cigarettes, but not for resellers of imported cigarettes. Accordingly, the law was found to breach GATT Article III:2. The ‘non-charge’ provision of GATT Article III:4 does not deal with taxes or internal charges. Instead, it requires that imported products must be provided treatment that is ‘no less favorable’ than that provided to like domestic products with respect to regulations affecting internal sale.”
One can see an almost similar nature of issues between the two WTO cases. As the ADB commentary on the WTO states: “The principle of National Treatment set out in Article III GATT addresses another form of discrimination, namely that between imported and locally produced goods. Article III requires that imported and locally produced goods be treated equally. In other words, Members are prevented from adopting internal or domestic policies designed to favour their domestic producers vis-a-vis foreign producers of a given product, even though the latter may all be treated in a uniform way. Article III:2 GATT concerns tax rules. It requires that internal taxes on imported products shall not be in excess of those applied to domestic goods. Article III:4 GATT imposes nearly the same obligation with respect to regulations and requirements affecting the internal sale of imported products. It provides that the products of the territory of any Contracting Party imported into the territory of another Contracting Party shall be accorded treatment no less favorable than that accorded to like products of national origin, in respect of all laws, regulations and requirements affecting their internal sale.”
It must be noted that there have been three (only three) liquor tax disputes prior to ours that went through the gauntlet of the WTO dispute settlement system. All three were resolved in favor of the EC as complainants. And all involved national treatment as the main issue. The first, Japan -- Alcoholic Beverages (DS8, 10, 11), had the EC complaining that, since vodka, gin, and white rum are “like products” to two categories of shochu, by applying a higher tax rate on the latter, the law violated GATT Article III:2, first sentence. The AB agreed -- ruling, among others, that the Panel’s finding that vodka was taxed in excess of shochu was correct. It also accepted the Panel’s interpretation that Art. III:2, first sentence, requires a determination of the presence of two elements: (i) whether the taxed imported and domestic products are like; and (ii) whether the taxes applied to the imported products are in excess of those applied to the like domestic products.
The second case, Korea -- Alcoholic Beverages (DS75, 84), relates to Korea’s multi-tiered taxation regime (the Liquor Tax Law of 1949 and the Education Tax Law of 1982) on the sale of alcoholic beverages. The complaint here centered on GATT Article III:2. In this case, the AB held, among others, that evidence of “present direct competition” and the Panel’s approach of grouping the liquor products were appropriate. Finally, Chile -- Alcoholic Beverages (DS87, 110) dealt with the “Additional Tax on Alcoholic Beverages,” levying an excise tax on the sale and importation of alcoholic beverages. The complaint again looked at GATT Art. III:2, second sentence.
This article hopefully demonstrated some of the intertwining concepts involved in GATT Article III. Succeeding articles will try to discuss why the WTO considered our excise tax laws on distilled spirits were in violation of the same.
26.1.12
24.1.12
Technicalities matter
The past days have seen loud calls from certain sectors in our society (I refuse to call it “popular” or “numerous” calls, as that is certainly far from certain) for a distancing from the so-called “technical” or “legal” or “judicial” approach to the present impeachment proceedings. Such are misguided at most and certainly not thought through as thoroughly as needed at the least. While indeed there may be merit in a more “liberal” interpretation of the rules, this nevertheless presupposes the application of rules itself. The following, partly due to time constraints, constitute mere immediate thoughts and jottings on the subject, and certainly not to be treated as a comprehensive, deliberate reflection (or even a completely reviewed draft) on the matter. Nevertheless, it is hoped that it stimulates a more studied approach on the issue of the application of procedural rules on the present impeachment trial of Chief Justice Corona.
The importance of technicalities
What some call "technicalities" (i.e., the rules of court) are but means to attain the "truth" that people say they want. It must be emphasized that lawyers don't resort to rules because they want to confuse people. They resort to those rules because experience and logic (and the rules themselves being the product of experience and logic, including the evidentiary rules in full display currently at the impeachment proceedings) have shown that this is the objective, impartial way to arrive at that truth against the mere passions of the crowd.
Some lawyers (and not a few crusading journalists) have harped on not letting the rules get in the way of finding the truth. But the rules, the evidentiary rules, were precisely there to help people arrive at that truth. Who is there to say that a particular document or testimony is to be admitted or is irrelevant? What qualification does any individual lawyer or judge (including senator judges) have over others that would make their consideration paramount over all? The point is, if anybody has found a better way to determine admissible evidence then perhaps they should tell us what it is so we can replace our present rules on the matter. There is a reason why the rules of court (which includes evidentiary rules) are so important is because it is objective. It insulates us from the passing passions of the moment. And people should remember this: the rules are there precisely for situations that we have at this moment. Let me repeat: the rules are there precisely for cases like the impeachment trial that we have now – when there are loud, angry calls that have ostensibly no presence of doubt that an individual should be punished for a crime he is supposed to have committed.
The rules are helpful in ordinary cases, when there relatively cooler heads that are fighting over an issue or rights. But the rules simply become necessary when people are terrifyingly certain that a fellow human being must be punished for an act he is alleged to have done. Because it is at that point that we then must exercise restraint and the rules are there to help us exercise that restraint.
Furthermore, people should not confuse the matter of admissible evidence with the standard of evidence or proof necessary to attain judgment. The latter we shall tackle further below. As to the former, it merely means or refers to the crux of the issue of the past days: the application of the rules of court as to the admissibility of evidence. Again, the rules are not mere technicalities so that lawyers can feel superior about themselves. The rules are there to guide us in knowing what document or testimony is relevant, admissible, truthful, or not reliable. Not all documents are correct copies or relevant, some witnesses may only be indulging in gossip or are biased – the rules are there to help us sift through the evidence that should be considered and that which should be discarded. Why the rules? Because unlike the lawyers and the senator judges, we can be more or less (more or less because nothing is perfect) assured that the rules will be more objective, impartial, and not swayed by the need for popularity, pressure, or personal ambition.
Note that the US impeachment proceedings (which proceeds from their Constitution, upon which our own Constitution closely relates) makes unabashed reference to “federal court, common law principles and the precedents of past impeachment trials” in relation to procedure. The reason for this, according to one commentator, is that: “the main functions of rules of evidence in criminal cases is to shield juries from potentially prejudicial or unreliable material, a protection that is less important in the Senate, whose members have the sophistication to give due weight to ‘hearsay’ evidence or other matters. Unlike regular jurors, senators aren't prohibited from reading newspapers or discussing the case; presumably they have already been exposed to much of the evidence. As a general matter, the Senate in the past has tended to err on the side of including evidence.”
Besides, the House Prosecution Panel very well knew the rules and what they were getting into when they filed the articles of impeachment. We know this because the Rules of Court have been there since those House members were in law school, the Senate Rules on Impeachment (particularly Article VI, which specifically makes reference to the recourse to the Rules of Court) have been there since the impeachment proceedings of former President Joseph Estrada, and the Constitution has been there since 1987. Which means that the responsible, intelligent, and mature manner of going about the impeachment proceedings is to have thoroughly prepared as much as possible, including having full knowledge of the rules, before the impeachment complaint was filed. To say that one’s litigation skills are “rusty” or that one is “not as experienced” is not an excuse. It only meant that the House Prosecution Panel, considering the tax money they will use up, had the responsibility to compensate for whatever inadequacies they may feel they have by simply working and studying harder. If they say that they didn’t know that it will be this difficult is to beg the question: why didn’t they know? In any event, nobody forced them (or at least none that we know of) to file the impeachment complaint now rather than later when they could have been (possibly) more prepared.
We also must consider: how fair is to the other party that just because the House Prosecution Panel are having difficulties that the rules should be changed mid-proceedings? Due process and the equal protection principles alone, which is applicable to all – bar none – frowns on this tact.
Political but judicial as well; Proof beyond reasonable doubt
The line has been taken that the impeachment proceedings are political in nature and not necessarily judicial. That is wrong. More accurately, they are both. They certainly call on the judgment of each of the individual senator judges. And it must be emphasized that the reason why under the US Constitution (upon which our Constitution parallels) it is the Senate that rules on the impeachment trial and not a judicial body like the Supreme Court is not to belittle the judicial characteristics of the latter but simply because, unlike the Supreme Court, the members of the Senate were not appointed by the President (see Alexander Hamilton, Federalist Papers, No. 65). So, again, to say it is political is true but it should not be at the expense of the judicial aspect of the proceedings. Emphasis must be made at this point that, as mentioned above, commentators are clear in declaring that, historically, US impeachment proceedings tended to rely on evidence in case of doubt. And so, therefore, while a senator judge must ultimately rely on his individual judgment, it is respectfully proffered that such judgment (like “consciences” when dealing with the subject of morality) must be properly formed. And that formation would necessarily involve the rules. What do those rules say?
The main charge essentially is that CJ Corona committed “culpable violation of the constitution” or "betrayal of public trust". These phrases are found in Article XI of the Constitution. Legal commentators have been clear that the former term is supposed to mean "the deliberate and wrongful breach of the Constitution." Furthermore, it has been stated by legal experts that "violation of the Constitution made unintentionally, in good faith, and mere mistakes in the proper construction of the Constitution do not constitute an impeachable offense." The picture that we get from this is the need for a deliberate wrongful act. In short, malice. It must also be considered that "culpable violation of the Constitution" and "betrayal of public trust" are placed alongside the crimes of "treason, bribery, graft and corruption, other high crimes." To be noted as well that impeachment convictions under the US constitution are those for the acts of "treason, bribery or other high crimes or misdemeanors."
Let us shift then to the Rules of Procedure on Impeachment Trials in the Senate. Article I immediately refers to “prosecutors”. Article VII refers to a “plea of guilty”. Article XXI talks of verdicts of “guilty or not guilty,” as well as "acquittal" or "conviction" (incidentally, Article XI of the Constitution also makes use of the word "conviction").
All the foregoing evokes the picture of a criminal proceeding. I am not saying that the impeachment proceedings are a purely criminal proceeding. I am pointing to the fact that it evokes a criminal proceeding, for which the senator judges are well invited to frame their judgments around. Some legal commentators seek to categorize (and in the process belittle) the impeachment proceedings as not criminal in nature because apparently CJ Corona is not sought to be “imprisoned” or “fined” but rather merely “removed from office.” That argument is a farce. The office is not merely any office. It is the office of the Chief Justice of the Supreme Court of the Philippines. It is very sad indeed if one cannot grasp the gravity of that. Furthermore, this is not to mention the fact that the impeachment proceedings could potentially ruin a man’s career, reputation, life, or even place in history. If one cannot appreciate the immensity of that, then one’s sense of compassion is very unfortunately non-existent.
In any event, considering that the rules, in its totality, seem to evoke a criminal proceeding, and that the rules itself on the standard of proof is silent on the matter, and considering the gravity and the immensity of the impeachment proceedings and its verdict, then for a senator judge to consider “proof beyond reasonable doubt” as the basis for his or her judgment (or at least as one basis) is not an irresponsible thing to do.
Certainly, this question was very much in the minds of the senator jurors in US President Clinton’s impeachment trial. Senators from both sides of the aisle have believed that “proof beyond reasonable doubt” is a proper standard. Yale Law School professor Charles L. Black Jr. believed that "overwhelming preponderance of the evidence" (which is a higher standard than that for civil or administrative cases) is proper considering "removal by conviction on impeachment is a stunning penalty, the ruin of a life. Even more important it unseats the person the people have deliberately chosen for the office."
-- In fine --
To call for a "non-judicialized" impeachment proceeding sounds nice on paper. But it should definitely limit itself, not to simplify or change the rules mid-stream, or (even worse) refer to an absence of rules, but merely a liberal interpretation of the rules as is needed by the situation. However, it must be emphasized that this is something that judges normally do anyway, as experienced litigators already know, and for which presiding Senator Judge Enrile is fully aware of and frankly is already doing. Otherwise, “non-judicialized” is merely a motherhood statement: warm and fuzzy but one that does not have any root in reality. If there were simpler, better rules around then we should be using them already even for ordinary legal proceedings for the simple reason that due process and equal protection principles demand it.
Interestingly enough, during the impeachment proceedings for then President Estrada, with a House Prosecution Panel that included now retired Justice Antonio Nachura, assisted by private lawyers such as now former Ombudsman and Solicitor General Simeon Marcelo, nobody seemed to have minded then the rules of the proceedings which were practically the same as they are today.
These impeachment proceedings don't need a change of rules. It just needs more hard work and lesser sloppy thinking.
19.1.12
Distilled spirits lose on WTO appeal
is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
In a ruling that probably was a surprise to some, the WTO Appellate Body upheld last December an earlier WTO panel ruling against the Philippine liquor industry. The AB recommended that the Philippines “bring its measures, found... to be inconsistent with the GATT 1994, into conformity with its obligations under that Agreement.” The US, understandably, was exultant: “This is an important victory for American distilled spirits producers and workers,” declared US Trade Representative Ron Kirk.
The WTO AB ruling was quite straightforward, focusing on the idea that “competitiveness” is a key aspect to grasping the concept of “likeness”: “While in the determination of ‘likeness’ a panel may logically start from the physical characteristics of the products, none of the criteria that a panel considers necessarily has an over-arching role in the determination of ‘likeness’ under Article III:2 of the GATT 1994. A panel examines these criteria in order to make a determination about the nature and extent of a competitive relationship between and among the products. We understand that products that have very similar physical characteristics may not be ‘like’, within the meaning of Article III:2, if their competitiveness or substitutability is low, while products that present certain physical differences may still be considered “like” if such physical differences have a limited impact on the competitive relationship between and among the products.” (see paras 119-120)
The AB finding harks back to the discussions made in EC-Asbestos that “a determination of ‘likeness’ under Article III:4 is, fundamentally, a determination about the nature and extent of a competitive relationship between and among products.” In sum, the AB seemed to have agreed with one US manufacturer’s assessment that Philippine excise laws on distilled spirits “is a textbook case of discrimination against imported products.” Or, as more diplomatically put by Ambassador Kirk: “The Philippine tax system for these products is discriminatory, plain and simple.”
The Philippine defense was spirited (no pun intended), led (as reported by other newspapers) by a host of trade law experts, including Solicitor General Jose Anselmo Cadiz and Gregory Spak of White & Case. White and Case, incidentally, is also the law firm assisting the Philippines in Fraport AG Frankfurt Airport Services Worldwide vs. Republic of the Philippines (docketed as ARB/11/12). The case, which practically was sent back to square one by the ICSID arbitral tribunal, had reportedly -- if newspaper reports are true -- already cost the government P2.65 billion in legal costs.
The Distilled Spirits Association of the Philippines (DSAP), however, still put up a valiant face, saying that the AB got the “wrong result.” The ruling, incidentally, was penned by renowned and highly respected trade law expert Peter Van den Bossche (as AB presiding member, with fellow AB judges Jennifer Hillman and Ricardo Ramirez-Hernandez -- all with advanced international law training and years of international trade practice). Anyway, the ruling stands. As Finance Assistant Secretary Maria Teresa S. Habitan said, there will be “one rate for fermented liquor such as beer and one rate for distilled spirits. The distinction on raw materials is removed.” This is seconded by Trade Secretary Greg Domingo, stating that the government will just have to “find ways to help alleviate potential negative impacts on distillers.”
However, one wonders why the tax law amendments weren’t made sooner. Timely amendments certainly could have helped the Philippines stave off a humiliating WTO loss. President Aquino already categorized the amendment of the said taxes to be a “priority measure,” with the draft bills placing emphasis on general welfare, increased revenue, and health objectives. In fact, as late as last year, reported then by BusinessWorld, the Finance department already suggested legislation adopting a simplified “unitary rate” for alcoholic products: “Distilled spirits such as whiskey, brandy, rum, gin and vodka will be taxed according to their alcohol content under the new bill. Those that contain 45% alcohol and below will be taxed P42 per proof liter next year, increasing to P80 in 2013 and P150 the following year. Distilled spirits that have a more than 45% alcohol content will be charged P150 per proof liter next year, P233.73 in 2013 and P317.45 in 2014.”
As it is, the Philippines now has to make the amendments within a “reasonable period of time,” which could either mean the period of time approved by the WTO Dispute Settlement Body, or as agreed by the Philippines with the winning Parties, or as determined through arbitration (which means additional legal costs for the government). Any such period should normally not exceed 15 months from the date of adoption of the AB report. If the winning Parties aren’t happy with the way implementation of the AB recommendations are being made, they could just resort to retaliation as provided for in Article 21 of the WTO Dispute Settlement Understanding.
We’ll devote further articles on this quite instructive ruling, analyzing the various issues raised by the Philippines and as addressed by the Appellate Body.
In a ruling that probably was a surprise to some, the WTO Appellate Body upheld last December an earlier WTO panel ruling against the Philippine liquor industry. The AB recommended that the Philippines “bring its measures, found... to be inconsistent with the GATT 1994, into conformity with its obligations under that Agreement.” The US, understandably, was exultant: “This is an important victory for American distilled spirits producers and workers,” declared US Trade Representative Ron Kirk.
The WTO AB ruling was quite straightforward, focusing on the idea that “competitiveness” is a key aspect to grasping the concept of “likeness”: “While in the determination of ‘likeness’ a panel may logically start from the physical characteristics of the products, none of the criteria that a panel considers necessarily has an over-arching role in the determination of ‘likeness’ under Article III:2 of the GATT 1994. A panel examines these criteria in order to make a determination about the nature and extent of a competitive relationship between and among the products. We understand that products that have very similar physical characteristics may not be ‘like’, within the meaning of Article III:2, if their competitiveness or substitutability is low, while products that present certain physical differences may still be considered “like” if such physical differences have a limited impact on the competitive relationship between and among the products.” (see paras 119-120)
The AB finding harks back to the discussions made in EC-Asbestos that “a determination of ‘likeness’ under Article III:4 is, fundamentally, a determination about the nature and extent of a competitive relationship between and among products.” In sum, the AB seemed to have agreed with one US manufacturer’s assessment that Philippine excise laws on distilled spirits “is a textbook case of discrimination against imported products.” Or, as more diplomatically put by Ambassador Kirk: “The Philippine tax system for these products is discriminatory, plain and simple.”
The Philippine defense was spirited (no pun intended), led (as reported by other newspapers) by a host of trade law experts, including Solicitor General Jose Anselmo Cadiz and Gregory Spak of White & Case. White and Case, incidentally, is also the law firm assisting the Philippines in Fraport AG Frankfurt Airport Services Worldwide vs. Republic of the Philippines (docketed as ARB/11/12). The case, which practically was sent back to square one by the ICSID arbitral tribunal, had reportedly -- if newspaper reports are true -- already cost the government P2.65 billion in legal costs.
The Distilled Spirits Association of the Philippines (DSAP), however, still put up a valiant face, saying that the AB got the “wrong result.” The ruling, incidentally, was penned by renowned and highly respected trade law expert Peter Van den Bossche (as AB presiding member, with fellow AB judges Jennifer Hillman and Ricardo Ramirez-Hernandez -- all with advanced international law training and years of international trade practice). Anyway, the ruling stands. As Finance Assistant Secretary Maria Teresa S. Habitan said, there will be “one rate for fermented liquor such as beer and one rate for distilled spirits. The distinction on raw materials is removed.” This is seconded by Trade Secretary Greg Domingo, stating that the government will just have to “find ways to help alleviate potential negative impacts on distillers.”
However, one wonders why the tax law amendments weren’t made sooner. Timely amendments certainly could have helped the Philippines stave off a humiliating WTO loss. President Aquino already categorized the amendment of the said taxes to be a “priority measure,” with the draft bills placing emphasis on general welfare, increased revenue, and health objectives. In fact, as late as last year, reported then by BusinessWorld, the Finance department already suggested legislation adopting a simplified “unitary rate” for alcoholic products: “Distilled spirits such as whiskey, brandy, rum, gin and vodka will be taxed according to their alcohol content under the new bill. Those that contain 45% alcohol and below will be taxed P42 per proof liter next year, increasing to P80 in 2013 and P150 the following year. Distilled spirits that have a more than 45% alcohol content will be charged P150 per proof liter next year, P233.73 in 2013 and P317.45 in 2014.”
As it is, the Philippines now has to make the amendments within a “reasonable period of time,” which could either mean the period of time approved by the WTO Dispute Settlement Body, or as agreed by the Philippines with the winning Parties, or as determined through arbitration (which means additional legal costs for the government). Any such period should normally not exceed 15 months from the date of adoption of the AB report. If the winning Parties aren’t happy with the way implementation of the AB recommendations are being made, they could just resort to retaliation as provided for in Article 21 of the WTO Dispute Settlement Understanding.
We’ll devote further articles on this quite instructive ruling, analyzing the various issues raised by the Philippines and as addressed by the Appellate Body.
12.1.12
The bully in Asia
is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
The Philippines last December again had to contend with Chinese naval intrusions in the Philippine territories within the Spratly group of islands, specifically the Escoba Shoal. This after multi-country agreements or understandings had been reached that any movement within the West Philippine Sea shall be peaceful and in conformity with international law.
The incident is but another in a long line of unapologetic Chinese intrusions in our territory, the most recent one prior to this being their incursion near Reed Bank. That time, Chinese boats brazenly moved against a Philippine ship, apparently with the intention of ramming it. The Philippine military properly and rightfully deployed two warplanes, one an OV-10 bomber, causing the Chinese boats to retreat. It must be emphasized that such happened within what is clearly Philippine territory.
All this merely goes to show the need to review our policy vis-a-vis China. This is simply a country whose government cannot be trusted. And insists with its inane stance of being Asia’s resident bully: aside from intrusions into Philippine territory, there’s the Senkaku incident, where a Chinese trawler intentionally rammed itself into Japanese coast guard ships while within disputed waters. Also, as reported by the Wall Street Journal (China’s aggressive new diplomacy, 1 October 2010), when: “... fleets of Chinese fishing ships illegally entered Indonesian waters in May and June, leading to a stand-off with Indonesian patrol craft that ended when one of the Chinese vessels aimed a large-caliber gun at the Indonesians. xxx China’s new assertiveness is more than a matter of provocation and petulance. It’s also a new state of mind.... when Hillary Clinton took the side of Vietnam in mildly pushing back against China’s claims to the South China Sea, Foreign Minister Yang Jiechi could barely contain his anger. Calling the Secretary of State’s remarks ‘an attack on China,’ he lectured that ‘China is a big country and other countries are small countries, and that’s just a fact.’”
The problem is exacerbated considerably because China’s government can’t even be relied on to be rational. Just last December, Chinese officials blasted US Representative to Hong Kong, Consul General Stephen Young, for “interfering in local politics” and which could lead to him “being declared persona non grata and expelled.” And what did Young say to deserve such attacks? As reported by the Wall Street Journal (Paranoia in Hong Kong, 23 December 2011), all he did was that he “praised Hong Kong’s fulfillment of Deng Xiaoping’s promise of ‘one country, two systems’ and its progress toward democratization.” Weird.
And this is worsened by US President Barack Obama’s seeming confusion on how to deal with the Chinese. While indeed proclaiming last week that new US military strategy is to put focus on the Asia-Pacific (a statement that naturally drew hysteria from the Chinese government), President Obama nevertheless last October turned down Taiwan’s repeated requests for F-16 fighters jets. As reported by Daniel Sayani: “Experts believe that the primary reason why the Obama administration refused to sell Taiwan the new F-16s is its desire to improve relations with communist China. Rather than viewing China’s growth as a threat to American interests, Obama stated on January 19, 2011 (at a White House press conference with Chinese President Hu Jintao), ‘We welcome China’s rise. I absolutely believe that China’s peaceful rise is good for the world, and it’s good for America,’ arguing that the country’s economic progress benefits the United States and opens the door to greater international stability and humanitarian progress.”
This declaration, made against the interests of a fellow democratic country that is Taiwan and contrary to calls by Republican leaders in the US House of Representatives, is pretty unrealistic. And quite disconcerting for countries in the Pacific area such as Vietnam, Indonesia, and the Philippines, which possess territories that China is attempting to unlawfully grab. It also smacks of shortsightedness, placing the burden of defending Taiwan, in case of a future Chinese attack, on the next US president.
In this context, the Obama administration’s apparent plans to push US Senate approval of the 1982 UN Convention on the Law of the Sea (UNCLOS) is ill-advised and again indicative of the US government’s wanting it both ways (whatever that may be or means) with regard to the Asia-Pacific. As cogently put by former US Ambassador to the UN John Bolton: “China wants to deny American access so it can have its way with its neighbors,” while what “Washington [should want] is to do what it has done since it became a maritime power: use its Navy to enhance international peace and security, deter conflict, reassure allies, and collect intelligence.”
We should clearly maintain our diplomatic efforts, particularly encouraging the maintenance of a balance of power in Asia. We should also insist on our legal rights. And I reiterate: the best way to deal with China in the meantime is to simply implement our laws, particularly on smuggling and immigration.
The Philippines last December again had to contend with Chinese naval intrusions in the Philippine territories within the Spratly group of islands, specifically the Escoba Shoal. This after multi-country agreements or understandings had been reached that any movement within the West Philippine Sea shall be peaceful and in conformity with international law.
The incident is but another in a long line of unapologetic Chinese intrusions in our territory, the most recent one prior to this being their incursion near Reed Bank. That time, Chinese boats brazenly moved against a Philippine ship, apparently with the intention of ramming it. The Philippine military properly and rightfully deployed two warplanes, one an OV-10 bomber, causing the Chinese boats to retreat. It must be emphasized that such happened within what is clearly Philippine territory.
All this merely goes to show the need to review our policy vis-a-vis China. This is simply a country whose government cannot be trusted. And insists with its inane stance of being Asia’s resident bully: aside from intrusions into Philippine territory, there’s the Senkaku incident, where a Chinese trawler intentionally rammed itself into Japanese coast guard ships while within disputed waters. Also, as reported by the Wall Street Journal (China’s aggressive new diplomacy, 1 October 2010), when: “... fleets of Chinese fishing ships illegally entered Indonesian waters in May and June, leading to a stand-off with Indonesian patrol craft that ended when one of the Chinese vessels aimed a large-caliber gun at the Indonesians. xxx China’s new assertiveness is more than a matter of provocation and petulance. It’s also a new state of mind.... when Hillary Clinton took the side of Vietnam in mildly pushing back against China’s claims to the South China Sea, Foreign Minister Yang Jiechi could barely contain his anger. Calling the Secretary of State’s remarks ‘an attack on China,’ he lectured that ‘China is a big country and other countries are small countries, and that’s just a fact.’”
The problem is exacerbated considerably because China’s government can’t even be relied on to be rational. Just last December, Chinese officials blasted US Representative to Hong Kong, Consul General Stephen Young, for “interfering in local politics” and which could lead to him “being declared persona non grata and expelled.” And what did Young say to deserve such attacks? As reported by the Wall Street Journal (Paranoia in Hong Kong, 23 December 2011), all he did was that he “praised Hong Kong’s fulfillment of Deng Xiaoping’s promise of ‘one country, two systems’ and its progress toward democratization.” Weird.
And this is worsened by US President Barack Obama’s seeming confusion on how to deal with the Chinese. While indeed proclaiming last week that new US military strategy is to put focus on the Asia-Pacific (a statement that naturally drew hysteria from the Chinese government), President Obama nevertheless last October turned down Taiwan’s repeated requests for F-16 fighters jets. As reported by Daniel Sayani: “Experts believe that the primary reason why the Obama administration refused to sell Taiwan the new F-16s is its desire to improve relations with communist China. Rather than viewing China’s growth as a threat to American interests, Obama stated on January 19, 2011 (at a White House press conference with Chinese President Hu Jintao), ‘We welcome China’s rise. I absolutely believe that China’s peaceful rise is good for the world, and it’s good for America,’ arguing that the country’s economic progress benefits the United States and opens the door to greater international stability and humanitarian progress.”
This declaration, made against the interests of a fellow democratic country that is Taiwan and contrary to calls by Republican leaders in the US House of Representatives, is pretty unrealistic. And quite disconcerting for countries in the Pacific area such as Vietnam, Indonesia, and the Philippines, which possess territories that China is attempting to unlawfully grab. It also smacks of shortsightedness, placing the burden of defending Taiwan, in case of a future Chinese attack, on the next US president.
In this context, the Obama administration’s apparent plans to push US Senate approval of the 1982 UN Convention on the Law of the Sea (UNCLOS) is ill-advised and again indicative of the US government’s wanting it both ways (whatever that may be or means) with regard to the Asia-Pacific. As cogently put by former US Ambassador to the UN John Bolton: “China wants to deny American access so it can have its way with its neighbors,” while what “Washington [should want] is to do what it has done since it became a maritime power: use its Navy to enhance international peace and security, deter conflict, reassure allies, and collect intelligence.”
We should clearly maintain our diplomatic efforts, particularly encouraging the maintenance of a balance of power in Asia. We should also insist on our legal rights. And I reiterate: the best way to deal with China in the meantime is to simply implement our laws, particularly on smuggling and immigration.
5.1.12
The doctrine of self-help
is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
The ongoing dramas (emphasis on the plural) that we have on the impeachment trial of Supreme Court Chief Justice Corona made me reflect on the fragility of our legal system. This is not the best of times to be a lawyer, particularly if you are a lawyer who is a) sane and b) intends to take his oath seriously. However, setting aside the plight of lawyers (who, presently, I find difficulty in taking seriously) the present national situation is even more damaging to that vanishing breed of Filipinos: the middle-class.
There are just too many laws (and planned laws) seeking to protect the “poor,” which is well and good. But current law is seemingly detached from reality, romanticizing their plight rather than providing them with the wherewithal to better their situation. Instead, shallow comfort is given by dragging down those fortunate enough to have more material resources (at present) than they do. But since our current laws or system are also constructed to help the elite maintain their undeserved status, the only group left that can be discriminated or trodden upon -- effectively -- is the middle-class.
So, apparently, in this country if you are middle-class, educated, taxpaying, with legal residence and occupation, heterosexual and with family, Catholic (or devoutly religious regardless of faith), not leftist, and not a Chinese or Spanish mestizo (or mestizo of any kind), the laws and our legislators (and our weakened judicial system) are most likely against you.
Take the case of an automobile collision with a jeepney or tricycle. The middle-class individual, who very possibly acquired his car through a company plan and is already struggling with higher gasoline prices, is now faced with the burden of recovering damages from the said driver. Or take the case of a maid (or any employee) suddenly deserting their employers, despite the fact that the latter already advanced the former’s transportation costs from the provinces. Or the middle-class landlord, whose sole source of income would be the few apartment units he owns, whose lessee suddenly stops paying and, even worse, starts taunting the landlord to “sue” if he wants to be paid. Or every delayed flight by an airline or premature disconnection by a phone or electric company.
In all those situations, the law would be incredibly unhelpful in giving relief to our middle class individual. To file a case in court is cumbersome (and expensive). He would need to file leave from the company in which he is employed, as court filings (including lawyer’s conferences) take hours. Then there’s the hugely jaw-breaking slow legal system. Unless you are Gloria Arroyo that the government wants to stop from leaving the country, it would take months, even years, for it to issue an order remotely helpful. And assuming that actually happens, how damages could be recovered from a jeepney driver (or owner), or maid, or lessee without discernible assets or tangible income is inexplicable.
That is why I am grateful to our very own dear leader and his administration for showing the way: if following a law or court ruling will not allow one to achieve a rightful objective or interest, then the law or court ruling should be disregarded. And since we are President Aquino’s “boss” (he said so himself), then what he could do, under this republican, democratic form of government we tell ourselves we follow, we could do as well and more.
Such thinking could actually be justified under the legal concept of “self-help,” which Celia Taylor, assistant professor at the University of Denver College of Law, defined as “private actions taken by those interested in the controversy to prevent or resolve disputes without official assistance of a governmental official or disinterested third party.” It’s a recognized, albeit not necessarily accepted, principle under both domestic and international law. Under the latter, the most recognized example would be the case of Alvarez-Machain, where the US decided, after extradition proceedings with Mexico stalled, to kidnap an alleged Mexican murderer and bring him to the US.
Our laws contains sporadic mentions of self-help, such as Article 429 of the Civil Code, and referred to by our Supreme Court in German Management & Services, Inc. vs. CA (G.R. No. 76217, September 14, 1989). Our criminal laws also contain provisions akin to self-help, particularly relating to individual safety, honor, or property. All permit the use of force or violence as the situation merits.
In any event, our Constitution provides that “no person shall be... denied the equal protection of the laws.” Presumably, this should be interpreted to mean that neither can the laws be used to improperly discriminate against the middle-class in favor of the vote-rich poor and the elite who constantly seeks to benefit from such votes. Now what the limits of self-help are, as we can presently extrapolate from the actions of our government, is something yet to be determined.
The ongoing dramas (emphasis on the plural) that we have on the impeachment trial of Supreme Court Chief Justice Corona made me reflect on the fragility of our legal system. This is not the best of times to be a lawyer, particularly if you are a lawyer who is a) sane and b) intends to take his oath seriously. However, setting aside the plight of lawyers (who, presently, I find difficulty in taking seriously) the present national situation is even more damaging to that vanishing breed of Filipinos: the middle-class.
There are just too many laws (and planned laws) seeking to protect the “poor,” which is well and good. But current law is seemingly detached from reality, romanticizing their plight rather than providing them with the wherewithal to better their situation. Instead, shallow comfort is given by dragging down those fortunate enough to have more material resources (at present) than they do. But since our current laws or system are also constructed to help the elite maintain their undeserved status, the only group left that can be discriminated or trodden upon -- effectively -- is the middle-class.
So, apparently, in this country if you are middle-class, educated, taxpaying, with legal residence and occupation, heterosexual and with family, Catholic (or devoutly religious regardless of faith), not leftist, and not a Chinese or Spanish mestizo (or mestizo of any kind), the laws and our legislators (and our weakened judicial system) are most likely against you.
Take the case of an automobile collision with a jeepney or tricycle. The middle-class individual, who very possibly acquired his car through a company plan and is already struggling with higher gasoline prices, is now faced with the burden of recovering damages from the said driver. Or take the case of a maid (or any employee) suddenly deserting their employers, despite the fact that the latter already advanced the former’s transportation costs from the provinces. Or the middle-class landlord, whose sole source of income would be the few apartment units he owns, whose lessee suddenly stops paying and, even worse, starts taunting the landlord to “sue” if he wants to be paid. Or every delayed flight by an airline or premature disconnection by a phone or electric company.
In all those situations, the law would be incredibly unhelpful in giving relief to our middle class individual. To file a case in court is cumbersome (and expensive). He would need to file leave from the company in which he is employed, as court filings (including lawyer’s conferences) take hours. Then there’s the hugely jaw-breaking slow legal system. Unless you are Gloria Arroyo that the government wants to stop from leaving the country, it would take months, even years, for it to issue an order remotely helpful. And assuming that actually happens, how damages could be recovered from a jeepney driver (or owner), or maid, or lessee without discernible assets or tangible income is inexplicable.
That is why I am grateful to our very own dear leader and his administration for showing the way: if following a law or court ruling will not allow one to achieve a rightful objective or interest, then the law or court ruling should be disregarded. And since we are President Aquino’s “boss” (he said so himself), then what he could do, under this republican, democratic form of government we tell ourselves we follow, we could do as well and more.
Such thinking could actually be justified under the legal concept of “self-help,” which Celia Taylor, assistant professor at the University of Denver College of Law, defined as “private actions taken by those interested in the controversy to prevent or resolve disputes without official assistance of a governmental official or disinterested third party.” It’s a recognized, albeit not necessarily accepted, principle under both domestic and international law. Under the latter, the most recognized example would be the case of Alvarez-Machain, where the US decided, after extradition proceedings with Mexico stalled, to kidnap an alleged Mexican murderer and bring him to the US.
Our laws contains sporadic mentions of self-help, such as Article 429 of the Civil Code, and referred to by our Supreme Court in German Management & Services, Inc. vs. CA (G.R. No. 76217, September 14, 1989). Our criminal laws also contain provisions akin to self-help, particularly relating to individual safety, honor, or property. All permit the use of force or violence as the situation merits.
In any event, our Constitution provides that “no person shall be... denied the equal protection of the laws.” Presumably, this should be interpreted to mean that neither can the laws be used to improperly discriminate against the middle-class in favor of the vote-rich poor and the elite who constantly seeks to benefit from such votes. Now what the limits of self-help are, as we can presently extrapolate from the actions of our government, is something yet to be determined.
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