WTO: dead again

is the subject of my Trade Tripper column for this Friday-Saturday issue of BusinessWorld:

Happened to read Bryan Magee’s Confessions of a Philosopher last weekend and noted this quite interesting passage: "What matters above all else in politics is what happens, not what people say about it. And for the most part what happens is independent of my wishes. In politics especially, people tend to allow their wishes to influence their assessment of reality, and to mix up the two even at conscious levels of thinking." Magee might as well be talking about international trade.

For instance, former US trade negotiator Clyde Prestowitz wrote (Financial Times, 20 March 2012) that the EU, Japan, China, and Brazil seems intent in playing a different "trade game" than that of the US. As Prestowitz puts it, "experience taught me that in today’s globalized world two different games are being played. One is suggested by the formal rules of the World Trade Organization. The other is a silent mercantilism played by countries that use subsidies and domestic regulations to exploit ambiguities in the formal WTO rules -- or that simply ignore them." Hence, while ideally everybody should be playing what he calls "trade rugby," instead certain countries are playing a different game which takes "advantage of the rules’ ambiguity, it can be played in the shadows of the global institutions, but it cannot be disciplined by them because it is a game with its own very different rules and scoring system."

This view is apparently shared by others. But, unfortunately, the logic has been extended in a distorted way by people that ordinarily would be considered reasonable, arriving at rapid conclusions that, in essence, call for the death knell of the WTO. But to consider the WTO or the multilateral system it represents or embodies as outmoded, irrelevant, or systemically inadequate is wrong. It’s like calling an end to basketball just because certain quarters have gotten adept at the run-and-gun game while the founding teams rather insist on their set half court plays. The game stayed the same, it’s still basketball. It’s just that some players found another way, a way suited to their particular circumstances, of playing it. While the traditional players could not be faulted for feeling threatened by this new type of play (and Prestowitz admits as much when he states that "‘they’ [meaning other countries] are playing a different trade game than ‘we’ [the US] are, and their approach is unfair to us"), nevertheless, it would be incredibly unjust, "unsporting" if you like, to scrap the game altogether merely because of it.

And what would be the suggested substitute if the WTO is indeed dead? In so many words, preferential or free trade agreements. But FTAs, as anybody following this column knows, is preferred by developed countries (the "traditional players") simply because that system and its playing field is currently loaded in their favor. As I noted a few years ago, the disparity between the benefits going to richer countries as opposed to that going to poorer countries was affirmed in a UN University Working paper ("North-South vs. South-South Asian FTAs: Trends, Compatibilities, and Ways Forward"). The paper’s empirical analysis reveal "that several incompatibilities exist between N-S and S-S FTAs in core areas including tariff liberalization, rules of origin, [and] liberalization of services trade." It must be emphasized that such realities, aren’t new. The Economist stated way back in 2004 ("Trade Policy: Not All Trade Agreements Are Good"), that: "Most bilateral agreements are far from ideal… Bilateralism may be a route to freer global trade, but it is, at best, a risky one." It must be emphasized that 20 years after its inception, Philippine utilization of AFTA benefits still remains at a low 20%.

That is why Columbia University’s Jagdish Bhagwati calls FTAs "termites in the trading system," used "by hegemonic powers to foist on weaker trading partners demands unrelated to trade but desired by domestic lobbies, at times in a markedly asymmetric way." Besides, the thinking that certain regional arrangements are there to balance against developed countries is again merely wishful thinking. Take for instance BRICS (Brazil, Russia, India, China, and South Africa), which is touted as the counterpoint to Western trade powers. And yet, as the Center for Policy Research’s Brahma Chellaney points out, BRICS remains "a concept in search of a common identity and institutionalized cooperation" and it remains "uncertain whether the group’s members will ever evolve into a coherent grouping with defined goals and institutional mechanisms."

Finally, the WTO will remain simply because there is no alternative to its highly effective dispute settlement system, a system that developing countries are using against developed countries with ever increasing confidence and competence. One WTO finding even declares that "since 1995 developing countries have brought nearly 40% of the complaints filed in the WTO. However, since 2000, developing countries have brought nearly 60% of the complaints."

As Mark Twain would probably say, the death of the WTO is "highly exaggerated."


Show on natural law and other issues

Just a quick note on our new show Naturang Batas: Likas Na Tama, which airs on TV Maria (cable channel 12 on Dream, 94 on Global Destiny, and 160 on Sky) every Monday, 11:00am, 7:00pm, and 11:30pm.

The show seeks to make audiences familiar with natural law and its implications on Filipinos' day-to-day lives. It also discusses various relevant social issues through the lens of natural law thinking.

Here are links to the previous four episodes:

- The separation of Church and State (with Prof. Buboy David and David Rosario)
- Introduction to Natural Law (with Fr. Ces Magsino and Edwin Lopez)
- Contraception (with Raul Nidoy, Ipe Salvosa, and Isha De Veyra)
- Youth (with David Rosario, Justin Akia, JV Pimentel, Luke Magsila, Jemima Landong, Glo Gueverra, and Ramon Cabrera)

Do support our advocacy of making natural law play a significant and systematic part of Philippine law and policy.


Taxing spirits

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

This is in further continuation of our reflections on the country’s bizarrely unfortunate (but highly revealing) 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 GATT Article III.2. Both the panel which tried the case and the Appellate Body emphatically said yes.

The EU and the US complaint similarly alleged that Section 141(a) of our National Internal Revenue Code impose an excise tax regime on distilled spirits in a manner that violates Article III:2, first and second sentences of the GATT. Under the said provisions, distilled spirits are subject to a specific flat tax rate if two requirements are met: "(i) if distilled spirits are produced from one of the designated raw materials that includes sap of nipa, coconut, cassava, or juice, syrup or sugar of the cane, and (ii) the designated raw materials are produced commercially in the country where they are processed into distilled spirits." Distilled spirits that do not meet either of the above requirements are subject to three different tax rates depending on the net retail price of a 750-milliliter bottle.

In short, low excise taxes are applied by the Philippines to spirits made from certain designated raw materials but allegedly significantly increased for spirits processed from the "non-designated" materials. By sheer coincidence, all domestic distilled spirits (mostly gins or rum type spirits) are culled from one of the above-designated raw materials. The vast majority of imported spirits, however, are made from the non-designated materials. Consequently, the US considered the Philippine taxes on distilled spirits as discriminatory against imported distilled spirits since the tax rates imposed are substantially higher than domestic spirits. The US would argue its claim from several angles: "intent," "likeness," and "discriminatory treatment" but the entire case decisively hinged on the issue of "likeness" of the products involved.

To determine "likeness", the Appellate Body took the same approach as the Panel, analyzing the products based on (i) its properties, (ii) end use, (iii) consumer tastes and habits, and (iv) tariff classification. The four factors were adopted from a Working Party Report on Border Tax Adjustments. The AB also considered the "competitive relationship" between the products as very crucial. The AB took note as well of Canada Periodicals and Korea -- Alcoholic Beverages, declaring that under Article III:2, first sentence, products that are near to being perfectly substitutable can be "like products." Bottom line, products with similar physical characteristics may still not be considered "like," as required under Article III:2, if competitiveness or substitutability is low. On the other hand, products with physical differences could still be considered "like" if the differences do not substantially affect the products’ competitive relationship.

The AB, therefore, upheld the Panel’s finding that the products in question are, indeed, "like" products. From that point, the conclusions were almost comically predictable. The AB ruled that the Philippines violated GATT Article III:2, first sentence. It also agreed with the Panel that both the imported and domestic distilled spirits are "directly competitive or substitutable" products, thus leading to the further conclusion that the Philippines violated GATT Article III:2, second sentence, as well.

So now we are left with the burden -- under time pressure -- of making our excise tax conform to the WTO ruling. In doing so, it’s important to consider certain parameters: the neutrality of the tax’s character and that "like products" be subjected to the same rates of tax. Needless to say, the tax provisions should be simple, not requiring the advanced training of a BIR collector. In terms of structure, the "specific" form of excise taxation would be best, it being easier to administer and does not allow manufacturers or importers to undervalue their invoice.

The DoF-suggested legislation is, by far, the more superior draft legislation, particularly when compared to that coming from the House of Representatives. To comply with the WTO rules, the tax structure based on raw materials must be done away with and the wide variance in tax rates among products eliminated. The DoF’s proposal of changing the tax base to alcohol content and eventually unifying the tax rate after a three-year transition period is quite reasonable, particularly with the expected incremental revenues of P11.2 billion in the first year of implementation, P26.5 billion in the second year, and P53 billion on the third year when the tiers are collapsed into one, and all distilled products are taxed at P150 per proof liter. The proposal includes an "indexation," enabling an annual increase in the specific tax rates. This, in turn, allows for incremental proceeds, providing sufficient funds to finance the universal health care program of the government. Economist Filomeno Sta. Ana posits that increased excise tax on distilled spirits would be "beneficial to the whole society."

Still, it’s interesting why these necessary changes weren’t made sooner. In vino veritas.


A Natural Law Manifesto

This essay is adapted from remarks delivered by Hadley Arkes on June 4, 2011 in Washington, D.C., to launch the Claremont Institute's new Center for the Jurisprudence of Natural Law.

In launching the Claremont Institute's new Center for Natural Law Jurisprudence we want to proclaim again the case for natural law, and offer a kind of Natural Law Manifesto. We announce here nothing new to the world, much in the way that James Wilson, at the origin of the Constitution, proclaimed that we were not, under this Constitution, inventing new rights. The object of the Constitution, he said, was "to acquire a new security for the possession or the recovery of those rights" we already possess by nature. The great Blackstone had famously said that, on entering civil society, we give up those unqualified rights we had in the State of Nature, including the liberty of "doing mischief." To which James Wilson asked, in a Talmudic question, "Is it part of natural liberty to do mischief to anyone?" In other words, as Abraham Lincoln and Thomas Aquinas had it, we never had a "right to do a wrong." Even in the state of nature we did not have a right to murder or rape, and therefore as we entered civil society, the laws that barred people from murdering and raping never barred them from anything they ever had a rightful liberty to do. And so, what rights did we give up on entering civil society? The answer given by Wilson and Alexander Hamilton was: none. As Hamilton said in Federalist 84, "Here, in strictness, the people surrender nothing." Hence there was something not quite right in the notion of a Bill of Rights reserving to people rights they hadn't surrendered to the state, for that implied that they had indeed surrendered the body of their rights to the state and that they were holding back now a few they hadn't surrendered. The very purpose of the Constitution—the purpose that directed all branches of the government, not merely the courts—was the securing of those "natural rights." One could deny that point, as Hamilton said, only by slipping into the teaching of Thomas Hobbes and supposing that there were no rights before the advent of a government, no morality antecedent to civil society. As Hamilton pointed out, in Hobbes's view morality was all conventional. We could not expect anyone to accept any moral restraints on his conduct, for until there were laws, he could have no assurance that there were moral truths out there that anyone would respect.

Hamilton may be taken as a telling voice here, for indeed the American Founding would not make any sense unless those doctrines of Hobbes were decisively rejected. But that is to say, again, that the founding, and the second Constitution it brought forth, found its telos, its central purpose, in the securing of natural rights, the rights that had to be there even before a government came into place. That understanding of the regime could not be explained without the recognition then of moral truths, of standards of moral judgment that had to be there before we could even conceive a Constitution. The whole project of a constitutional government could not begin unless one understood in the first place the notion of a regime of law, a government restrained by law, of rules that bound rulers as well as those who were ruled. One had to understand, that is, in the first place the very logic of "law"—of propositions that could rightly claim to be valid for everyone, not merely expressions of the private interests or feelings of those who ruled. But that brought us back instantly to the N-word: nature. As Aristotle taught at the beginning, the defining mark of the polis was the presence of law, and law sprang from the nature of only one kind of creature. Only one kind of being could understand and respect a law beyond his own appetites, or grasp what it meant to bear an obligation to a contract or a law even when it no longer accorded with his interests or inclinations. It must have been the same creature referred to by Immanuel Kant when he said that all of the moral principles governing our lives may be drawn from the very idea of a "rational being as such." The American Founders understood that there was nothing distinctly American then about the idea of a rule of law, or the principles that barred ex post facto laws, or established the wrongness of bills of attainder. They understood that these principles would not be brought into being by the Constitution they were framing. Those principles had to be in place as guidance in our framing of a legal structure. The founders knew they could draw then on what Blackstone called the "laws of Nature and reason."

But it seems to be widely forgotten that the tradition of natural law always made a place for positive law, the law that is "posited" or enacted in any place, and sensitive then to conditions distinctly local. We see signs on the road saying 35 mph or 70 mph, and those numbers have no moral significance. But Kant reminded us that behind the positive law is a deeper natural law that tells us why we would be justified in having a law in the first place. We can grasp the principle that would justify us in restraining the freedom of people to drive in a manner that puts innocent life at hazard. But we translate that principle into a regulation that couldapply the principle to the circumstances and terrain before us—70 mph on the open highway, perhaps 35 mph on this winding country road.

The Recoil from Natural Law

But we meet now at a time, when lawyers and judges on the conservative as well as the liberal side have rather clearly rejected natural law, treated it with derision and contempt, as though they could give a coherent account of the law without an account of those underlying moral principles that alone could justify the making of laws on any subject. Our allies on the conservative side retreat to some safe formula of positive law, a focus on the text of the Constitution, or a commitment to "originalism" and tradition. But with that move they transmute the question; they turn jurisprudence into legislative history. They do it because they think it is the most prudent way of protecting the country from the adventures of judges soaring off, inventing new rights, all on the side of the Left, all untethered to any text or to any ground of moral judgment. But in that path there has been no safety, and therefore no prudence, and beyond that, no coherence—no jurisprudence that can give a coherent account of itself. As for the liberal side in our politics, they show an incurable penchant for overriding the positive laws, the laws enacted by people who are elected to make them—laws that may protect nascent human beings in their mothers' wombs, or laws that confine marriage to the commitment of a man and a woman. The Left will offer high sentiment, overriding the laws made by majorities in the name of a higher law or principle. They make some of the sounds of those who hold to natural law, but with one striking omission: they emphatically deny there are moral truths, truths that hold their truth even when they run counter to the will of a majority. Professor Laurence Tribe will simply invoke convictions "powerfully held." Professor Ronald Dworkin will regard instead, as the ultimate foundation of jurisprudence, "a nation's political traditions and culture." Both arguments could readily have encompassed the rightness of slavery. For that institution certainly reflected convictions "powerfully held" and a long-standing feature in the "political traditions and culture" of this country. But some commentators on the liberal side would rather live with that result than appeal to natural law and put in place the recognition of moral truths; truths that may be used to cast judgments on others, even in their sexual lives.

The liberal side in our politics finds its aversion to natural law in the recognition both of moral truths and of "nature." The orthodoxies of postmodernism and relativism on the American campuses emphatically deny that there is a fixed human nature. "Natural rights" they regard as an ideology of patriarchalism that justified the rule of white males. And "nature," they say, is "socially constructed" from one place to another according to the vagaries of the local culture. On the conservative side, there seems to have been a critical forgetting that natural law found its grounds in the laws of reason. A president of Amherst College once observed that I had a "theory" of natural law. I remarked to him that when people say things of that kind, they rather imply that they are standing back, wholesomely detached, noticing the "theories" whizzing past them. And somehow they are able to make judgments about the fragments of theories that they regard as plausible or implausible, true or false. I said: take me back to the ground on which you are making those judgments, to the standards of judgment you are using, and you would be led back precisely to those "laws of reason" that I take as the ground of the natural law.

The conservatives fear that judges, licensed to invoke the natural law, will be soaring off, as judges have done, but with no standards to discipline or constrain their appeal to lofty sentiment. It's not merely the liberal activists who doubt that reason has moral truths to discern. The jural conservatives apparently do not themselves have confidence that there is a discipline of reason that offers guidance and constraint on judgment. And yet, they are convinced that "activist judges" have abused the claim to invoke a higher law or natural law. But if they can identify an abuse of natural law, that rather implies that they have standards of judgment accessible to them, standards by which they can tell the difference between the claims of natural law, or the exertions of moral reasoning, that are defensible or spurious, true or false. In that case, we may ask: Why would the conservatives take the antics of the liberal judges as an excuse to abandon the natural law, and the moral ground of the law, rather than claiming the high ground for themselves? Why not take their recoil as a moment to get the liberal judges clear on the difference between a plausible appeal to the principles of natural right and an appeal to a woolly, implausible version? Why not rather expose the pretenders to the higher law of liberal activism as the pretenders, the vendors of false reasoning, that they are?

From the Old to the New

I come then today, perhaps in the style of Edmund Burke, to make An Appeal from the Old Jurisprudence to the New: from the old jurisprudence, which relied on natural law as a matter of course, to a new conservative jurisprudence that has not only been resistant to natural law, but scorns it. At one level, some of the conservative jurists insist that their concern is merely prudential: Justice Antonin Scalia will say that he esteems the notion of natural law but the problem is there is no agreement on the content of natural law. Far better, he argues, that we simply concentrate on the text of the Constitution, or where the text is silent, on the way in which the text was "originally understood" by the men who framed and ratified it. Hence the doctrine of "originalism." But as I've had the occasion to explain many times over, this notion of agreement or disagreement is built upon one of those things the philosophers understand as a "self-refuting proposition." For it reduces to this claim: "that the very presence of disagreement on any matter of moral consequence indicates the absence of truth." But all I have to do is record my own disagreement with that proposition and that should be enough, on its own terms, to establish its falsity. This country was highly divided on the matter of slavery, or on civil rights in our own time, and that didn't seem to affect people with the sense that it was impossible, under those conditions, to offer a judgment on where justice really lay in these matters.

Beyond that, we've had ample evidence by now to see the justices fall into the most heated and polarized divisions over the meaning of words and clauses in the text of the Constitution. We need look only at the deep disagreement among the judges recently on the meaning of the Second Amendment, on the right to bear arms, to say nothing of the partisan passions that spring up over the meaning of such terms as Equal Protection of the Laws, or Due Process of Law. It should be clear that a reliance on the text of the Constitution does not deliver us from serious arguments and deep disagreements. On the other hand, I'd point out that the first principles of natural law are so bound up with the laws—and are often so evident to ordinary people—that they inspire virtually no disagreement. Consider for example that proposition the Scottish philosopher Thomas Reid regarded as one of the truly "first principles" we draw from the logic of moral judgment itself, a principle I've restated in this way: that we do not hold people blameworthy or responsible for acts they were powerless to affect. That principle may cover a wide variety of things where people really had no causal powers over their condition or their acts and should not be held culpable. We may argue in different cases as to how powerless or incapable people actually were, but no one doubts the validity of the principle—or doubts that the principle would hold true in all places, public and private, at any time. Wherever we are, it is never tenable to hold someone responsible for a crime committed before he was born, or a crime he was evidently incapable of committing. Axioms of this kind have been so woven into our law that we often fail to notice them any longer. But they stand as striking evidence that the deepest principles of the law do not in fact inspire a deep division in our country. They are understood readily by ordinary people, and are not regarded as inscrutable even by lawyers.

The First Generation of Jurists

The first generation of our jurists and lawyers gave us remarkable examples of how they made their way, strainlessly and elegantly, to the ground of the natural law in the axioms of our reasoning. They would trace their judgments back to first principles, to the principles that were usually not mentioned in the text of the Constitution, because they were the truths that had to be in place before one could even have a Constitution or a regime of law.

In a throwaway line at the end of his opinion in the landmark case of Gibbons v. Ogden (1824), John Marshall apologized to his readers for spending so much time demonstrating what should stand in the class of an axiom. That is, he assumed that every literate reader out there would know that, before a demonstration or experiment could be offered, certain indemonstrable points had to be in place—indemonstrable because no demonstration could be understood if these points weren't grasped. These were truths that had to be grasped, as the saying went, per se nota, as things true in themselves. That the founders were uncommonly clear on this matter was revealed sufficiently by Alexander Hamilton in that preface he wrote to Federalist 31 on taxation. In the course of that paper, he reached no conclusion different from what John McCain, in our own time, would have reached. But any reader looking at the text would have noticed at once some strikingly different furnishings of mind. For Hamilton put it this way:

In disquisitions of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind.... Of this nature are the maxims in geometry, that "the whole is greater than its part; that things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other." Of the same nature are these other maxims in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation.

What we grasp most notably per se nota, as something true in itself, is the anchoring proposition and the touchstone of the laws of reason, "two contradictory propositions cannot both be true." In the sameb way, we grasp without much strain—and with no serious controversy—these anchoring points in moral judgment and natural law: first, that the language and logic of moral judgment apply only to the domain of freedom, where people are free to choose one path of conduct over another, and so we say again, in a reworking of Thomas Reid, that "we don't hold people blameworthy and responsible for acts they were powerless to affect." And second, we grasp per se nota the truths that stand behind that "proposition," as Lincoln called it, the anchoring proposition of the American republic, "all men are created equal." For we grasp at once that, even in this age of animal liberation we don't sign labor contracts with horses or cows; nor do we seek the informed consent of our household pets before we authorize surgery upon them. But we continue to think that creatures who can give and understand reasons deserve to be ruled through a rendering of reasons or justifications by a government that is compelled to elicit their consent. We can take then, as the anchoring ground of "first principles" those propositions we can grasp per se nota, as true in themselves, or propositions that cannot be denied without falling into self-contradiction.

Those are the grounds to which Lincoln and the founders appealed. They did, elegantly and luminously, what the spokesmen for conservative jurisprudence in our own day insist should never be done. Let me offer just an example or two.

In Federalist 78, Hamilton noted the rule that guided the courts in dealing with statutes in conflict: the statute passed later is presumed to have superseded the law enacted earlier. The same rule does not come into play, of course, with the Constitution, for a Constitution framed earlier would have to be given a logical precedence over the statute that came later. Were that not the case, the Constitution would lose its function, or its logic, as a restraint on the legislative power. But these rules for the interpretation of statutes are nowhere mentioned in the Constitution. As Hamilton remarked, they were "not derived from any positive law, but from the nature and reason of the thing."

In that landmark case of McCulloch v. Maryland (1819), Chief Justice Marshall pointed out that the Constitution gives Congress the power to "punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." But the question could be raised then as to whether, in a Constitution of enumerated powers, Congress has the power to punish where that authority has not been explicitly given. The question became the occasion for Marshall to move back to the deep axioms of moral judgment and the law. Marshall mused in that vein that the power to establish must entail the power to preserve. If the Congress can establish a system of mails, it must have the power to protect the mails against theft. But then, as Marshall pointed out, the answer must be implicit in the very idea of the power to legislate. A law was binding on everyone in the territory who came within its terms. If a law were not obeyed, and the law not enforced, how was the law "binding"? And if a law was not binding, if it did not entail an obligation to respect it, in what sense was it a "law"? As John Stuart Mill would later point out, we stop using the language of like and dislike and begin using the language of "right" and "wrong" to the extent that we think people may rightly be punished for what they are doing. If we are serious when we declare a certain class of acts to be "wrong," and to bar them with the law, the notion of law itself must entail the possibility that people may be punished for doing the things that the law forbids.

Different Angles

That theme of judges teaching brings me to two dear friends, distinguished jurists and gifted teachers, and yet men who have been scathing in their aversion to natural law, Justice Antonin Scalia and Judge Robert Bork. As I've argued in the past, these jurists have given us some compelling moments in applying the canons of reason to the cases coming before them. They've given us some elegant examples of how natural law might be done even while they've been professing up and down that it cannot be done. I've argued to Justice Scalia that he has done the work of natural law handsomely in cases like Rapanos v. United States(2006), which dealt with the limits on the expansive reach of the Army Corps of Engineers in trying to claim jurisdiction over wetlands, including anything essentially wet. He pointed out that the statutes here never meant to cover "transitory puddles or ephemeral flows of water." But then in response to Justice Kennedy he delivered this telling, Talmudic question: "[W]hat possible linguistic usage would accept that whatever...affects waters of the United States is waters of the United States?" It was an appeal to propositional logic, something not spelled out in the text of the Constitution, but something of evident relevance in helping to establish the limits to the reach of a federal statute.

In District of Columbia v. Heller (2008) three years ago the Supreme Court held that the right in the Second Amendment to keep and bear arms was indeed a right that was confirmed for persons, for individuals, not merely for militias organized by the states. In the course of his opinion for the majority, Justice Scalia appealed to a deep right of self-preservation. In a conversation a while back I remarked that I assumed that he was appealing to the right of an innocent person to fend off an unjustified assault. And he confirmed that that was indeed what he had in mind. But those words on self-preservation were not in the text of the Second Amendment, and so the question arose: Was he appealing to a deep principle that did not depend for its validity on its mention in the text? Or, was he saying that Blackstone and James Wilson invoked that right of self-preservation, and that many people read them at the time?

I don't think that my friend has settled his answer to that question, but he seems to be tilted to the second—to the evidence in the record that this understanding was so widespread at the founding that it could plausibly be counted as part of the "original understanding." The hazard here is precisely that this approach converts jurisprudence into legislative history. In the case of the Second Amendment, it redirects us to ask: How many of the men who framed the Second Amendment and voted to ratify it in the states had actually incorporated that understanding expressed by Blackstone, Locke, Hobbes, and others? Well, how many would be enough before we could impute the understanding to the founders and stamp it authoritatively as part of the "original understanding"? In the nature of things, we cannot get an answer to that question. But even if we did, it would not be the answer to the question we are asking: it would not be the answer to the question of whether the laws may cast up barriers to an innocent person trying to make use of lethal force in defending himself against an unjustified assault, if that seems to be the only way of defending himself.

More recently, Robert Bork offered a criticism of President Obama for backing away from a defense of theDefense of Marriage Act (DOMA). Bork was certain, as I am, that the judgment reached by Mr. Obama, on the constitutionality of DOMA, was quite wrong. The president had come to the judgment that it was as wrong to withhold a marriage license from a couple of the same sex as it had been wrong, in an earlier day, to withhold a marriage license from a couple comprising members of different races. Mr. Obama professed to think that the willingness to treat these couples differently from other couples allowed to marry violated the Equal Protection Clause.

In that judgment, I'm emphatically with Robert Bork; I share the view that the president's argument is quite untenable. But we reach that judgment through paths notably different. Judge Bork would simply ask whether the right articulated in this case was contained in the Constitution, or whether it was originally understood, by the men who drafted and ratified the 14th Amendment: Had it really been understood at the time that that amendment would make it indefensible to confine marriage to one man and one woman? Could we plausibly impute then to the authors of that amendment a willingness to install same-sex marriage? The notion, of course, is quite bizarre. I would have to doubt that any such idea was in the head of anyone who had anything to do with the writing or passage of that amendment. And yet, if we were to be governed on this matter by the "original understanding," the record here carries a serious embarrassment for the arguments of the "originalists." Robert Bork harbors no real doubt that it would be contrary to the principles of the Constitution to bar people, through the laws, from marrying across racial lines. But if there is anything that is clear about the original understanding of the 14th Amendment, it is that Lyman Trumbull, who managed that amendment in the Senate, assured his colleagues up and down that nothing in that proposed amendment would call into question those laws in Illinois as well as Virginia that barred interracial marriage. And it seemed to be one of those things firmly understood that the 14th Amendment had no ghost of a chance to be enacted unless Trumbull could credibly offer those assurances to his colleagues and the public.

It's a nice question then for our friends committed to "originalism" as to whether the Court should have decided Loving v. Virginia in 1967 and struck down those laws barring marriage across racial lines. I seriously doubt that Justice Scalia, say, would come down now against deciding that case, and deciding it the way the Court did. But the recognition, surely melancholy for him, is that the Court could reach that decision only by going outside the text of the 14th Amendment and explaining the principle that makes it deeply wrong for a legislature to conclude that the fitness of people to enter marriage could hinge in any way on their race. The question would bring us back to the wrong in principle of racial discrimination: we cannot coherently reach judgments about the worth and deserts of people on the basis of their race, as though race exerted some deterministic control over the conduct of people—as though, if we knew the race of any person, we would know anything of moral significance about him, as in whether he was a good or bad man, who deserved to be welcomed or shunned, praised or blamed. Do we really have any ground, then, on the basis of race, for making guesses about the fitness of anyone to accept the obligations of marriage?

It is no knock on Trumbull that he didn't seev all of the implications that could spring from the principles he was planting in the law. For who among us can? The life of moral experience is a life of discovering, in cases that suddenly illuminate the landscape, implications of our own principles that have heretofore gone unseen. But it would have been necessary to explain the principle here, in order to explain why it was legitimate for the Court to depart from the original understanding of the 14th Amendment and hold invalid that law in Virginia barring marriage between blacks and whites. And yet, that is precisely what our friends holding the banner of "originalism" are so averse to doing. For to move along that line, is to move along a path that takes us outside the text—takes us to principles that need to underlie the text in order to make the text comprehensible and compelling in the cases coming before us. Our friends are so offended by the performance of activist judges, that they would rather take the path of doing legislative history, or getting tangled in arguments over the reading of the historical record, if that will have at least the effect of diverting people from getting lured into the mirage of natural law.

I think we can predict, in the litigation over same-sex marriage, that the courts facing the challenges to traditional marriage will hear the arguments over "original understanding" and quickly brush them aside. The historical record, they will briskly tell us, is not free of controversy. And so where will the argument move? It will move precisely to the point that Bork found indefensible without lingering to explain why it was indefensible. We will be challenged to explain why race was irrelevant to the sexual relation that was central to the joining of bodies, as well as souls, in marriage. At the same time, we would have the task of arguing, in contrast, that the complementarity of the sexes is essential to the purpose, or telos, implicit in the very existence of men and women: that marriage finds its distinct, and most coherent rationale, as a framework of commitment around that central purpose of sexuality, in the begetting and nurturing of children. One way or another the argument will have to make its way to that point, and everyone knows it. The argument will not hinge at any point on the speeches of Lyman Trumbull and the "original understanding" of the 14th Amendment. But if that is the case, we earnestly press the question: what is the purpose or rationale of a mode of jurisprudence that is guaranteed to distract us from the main question in substance, a mode of argument that is bound to be a sure loser in the future as it has been for most of the past 50 years? Is there any purpose beyond this ritual of evasion other than the concern that we divert judges and lawyers from the dangers of taking natural law seriously?

What Difference Would It Make?

The question has been put earnestly to us, though: would you really come out, at the end, with conclusions different from those that Scalia and the conservative judges would reach? And if not, what is the point?

As it turns out, Justice Scalia has indeed spoken for me in these cases most of the time, and spoken for me grandly. In his critical views on abortion in cases like Webster v. Reproductive Health Services (1989),Planned Parenthood v. Casey (1992), Stenberg v. Carhart (2000), or even in cases touching on abortion, such as Madsen v. Women's Health Center (1994)and Hill v. Colorado (2000); in his dissents on cases dealing with sexuality and the law in Romer v. Evans (1996) and Lawrence v. Texas (2003); or in his commentaries on assisted suicide in Gonzales v. Oregon (2006)—in all of these instances, to my mind, he touched the right themes in the right way. And he touched something running deep when he remarked in Wabaunsee County v. Umbehr (1996) that, "day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize."

Happily, we would find ourselves agreeing with our friends on the Court most of the time. But the claim we are making is that the natural law, or the laws of reason, provide a much firmer ground of principle for our judgments, and if we are right in that claim, we may avoid many of the distractions our friends have encountered as they follow a design to avoid any distinct moral logic or moral ground for their judgments. And in turning away from that path of avoidance, our claim would have to be that we could offer, in some places, a more coherent account of the law we would preserve and shape, where it falls to us to shape it, under the Constitution.

In that vein, we could never have signed on as the Court, in 1971, recast the jurisprudence on speech and civility by incorporating the relativism of Justice Harlan: "One man's vulgarity is another's lyric." We could not have followed our conservative judges as they began to sign on, year by year, to the notion that ordinary people and legislators could make no plausible restrictions based on the "content" of speech. We could not then have joined a Court that cast the protections of the Constitution on the burning of crosses or the burning of the American flag. Nor would we join in draping the protections of the First Amendment on a crowd harassing a family at the funeral of a dead marine with signs saying "Semper fi fags" and "Thank God for Dead Soldiers."

But the differences in jural perspective that I'm marking off here may have their most profound effect as they reach the most central question that the law may ever reach: who counts as a human person—who counts as the kind of being whose injuries matter? It was the question raised as President Bill Clinton vetoed the bill on partial birth abortion and expressed the deepest concern for the health of the woman denied that procedure. Of that other being present in the surgery, the one whose head was being punctured and the contents sucked out—the assault on the health of that being made no impression on Clinton. The harms didn't register because the sufferer of the harms did not count in this picture.

But in raising questions of this kind, a jurisprudence with our perspective would pose the question insistently: what is the ground of principle on which the law may remove a whole class of human beings from the circle of rights-bearing beings who may be subject to the protections of the law? Why have so many conservative judges come to assume that the Constitution has nothing to say about the principled grounds on which legislators may withdraw the protections of the law from those small human beings in the womb? I've mused in print over the problem of what the judges would have done if the understanding had settled in quite early that those Civil War Amendments applied only to blacks who had become human. For after all, we've been told that not everything conceived of humans is human at all times and stages in its life. And so the matter could be returned to the states as the judges declare that they have no more competence in deciding on the beginning of human life than the first nine names in a local telephone directory. Does anyone really think the judges in our own day would have no questions to raise if the states decided that children were more human as they were lighter in complexion, or scored higher on verbal tests? But we know that the judges have the modes of argument readily at hand in a case of that kind to identify grounds that are thoroughly arbitrary in making discriminations here between the human and the not-quite-human, between those with a claim to live and those whose lives may be taken without the need to render a justification. Why then should we suppose that judges in our own day, liberal or conservative, would encounter an inscrutable problem if they found humans in the womb put outside the protections of the law because of their height or weight, because they are lacking limbs or hadn't acquired yet the facility to speak and do syllogisms? Why then, we must ask, are the men we regard with the highest respect as jurists, so utterly convinced that something in the scheme of jurisprudence and the Constitution somehow bars them from raising that kind of question, the question that pierces to the core of those rights, and those persons, that the Constitution was designed to protect?

We raise then an appeal to our friends doing conservative jurisprudence: you were drawn to the life of the law because you thought it raised questions of the gravest consequence, questions of moral consequence, about the just ordering of our lives, about the things that are just or unjust, right or wrong. And having come this far, why would you ask us or yourselves to settle in with a mode of reasoning about the law that gives us a kind of sing-song morality, a set of slogans pretending to a jural philosophy, and whose main rationale is to avoid the appearance of engaging in moral reasoning? You offer constructions to scale down the project, to look only at the text of the Constitution, or the tradition of holdings by judges, while cautioning us again not to ask the questions that run beneath the surface to the core of things. At best, we may produce in that way decisions that seem by and large to come out the right way. But we cannot give our best reasons, our fullest reasons, the reasons that give the most coherent account of the decisions we are making, the law we are shaping. And the question at the end is: why should you—why should we?—settle for anything so diminished, when measured against the moral seriousness of the questions brought before us?

In the Physics, Aristotle remarked that if the art were in the materials, we would expect to see ships growing out of trees. But ships were part of a world governed by design, by the awareness of ends, and the shaping of reasons. The world of law is part of that same world. And so we offer this appeal from the old jurisprudence to our friends who are offering us their version of conservative jurisprudence: Where in all of this is the art? Where is the understanding you've cultivated, the judgment you've seasoned in experience? Where in all of this would we find the record, to be lingering in time, that we were here: that the law we are preserving would be as comprehensible and compelling, as resonant with common sense, in the next generation as it is in our own, and as it will ever be?

This we may take as our Natural Law Manifesto; this is the challenge we would pose now to our friends in the law. But it is a challenge to join us in a conversation. Some of our friends find something attractive about the very idea of natural law, but they doubt that it is practicable and they are wary of it. To them we say, join us: If we are wrong, you can help show us where we're wrong. And if we are right, we shall simply discover anew the grounds of law we share more deeply, the grounds of law that have ever been in place.


Defending religious freedom

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

Somebody told me during the weekend that a chapel in MalacaƱan Palace was recently padlocked. Consequently, the employees in the offices there are forced to hurry off to farther churches to hear Mass. Now I don’t know if the story is true (and, if so, what the reasons were for shutting the chapel down) but it did make me think on the issue of religious freedom. Of how believers all over the world, whatever their religion, are beginning to assert their rights in relation to their faith.

It’s fair to say that religious freedom is presently under sustained attack. The assaults range from the subtle (as can be seen perhaps in popular sitcoms) to the not so subtle (US President Obama’s HHS Mandate, as well as the Hosanna Tabor case, come to mind). Indeed, hostility towards religion is the one remaining act of discrimination allowed in popular society. It is simply impermissible to question minorities’ demands, terrorists’ entitlement to human rights, and criminals’ need for better treatment. However, to insult, degrade, or otherwise denigrate religious people is completely acceptable. US radio host Rush Limbaugh is now in trouble for calling a woman a "slut" after she publicly admitted to promiscuity and testified in Congress that the government (or employers or her school) should subsidize her sexual activities. Definitely, Limbaugh’s acts are to be condemned but what does this say of a society that prefers to look the other way when it comes to Bill Maher grossly insulting people simply because of their religious beliefs?

The problem has reached such levels that a group of influential religious leaders and academics decided to come out recently with a statement ("In Defense Of Religious Freedom," published in First Things) decrying the fact that "religious freedom is under renewed assault around the world. While the threats to freedom of faith, religious practice, and religious participation in public affairs in Islamist and communist states are widely recognized, grave threats to religious freedom have also emerged in the developed democracies. In the West, certain religious beliefs are now regarded as bigoted. Pastors are under threat, both cultural and legal, for preaching biblical truth. Christian social service and charitable agencies are forced to cease cooperation with the state because they will not bend their work to what Pope Benedict XVI has called the ‘dictatorship of relativism.’"

However, to violate people’s right to religion is a mistake. As pointed out by Princeton’s Robert George: "Rights are not abstractions. They protect human goods… [and] religion is another irreducible element of the basic human good. Religion is also important to the human good because it shapes how one pursues other human goods, and people order their lives according to religious judgments about religious truths."

The problem is that a substantial number in society wants to limit religious freedom to the mere act of praying in private. As correctly stated by "In Defense Of Religious Freedom": "Proponents of human rights, including governments, have begun to define religious freedom down, reducing it to a bare ‘freedom of worship.’ This reduction denies the inherently public character of biblical religion and privatizes the very idea of religious freedom, a view of freedom such as one finds in those repressive states where Christians can pray only so long as they do so behind closed doors. It is no exaggeration to see in these developments a movement to drive religious belief, and especially orthodox Christian religious and moral convictions, out of public life."

Domestically, our laws support this basic human right. Article III, Section 5 of the Constitution states that "No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights." This proceeds from the principles declared in Article II, Section 6 which declares that "The separation of Church and State shall be inviolable." Note there’s nothing that says citizens (including government officials) are prohibited to act according to the tenets of their faith. Instead, the Constitution, rather than discouraging religions, actually supports it by mandating tolerance for all religions and encourages the advocacy (or proselytism) of the same.

As cogently put by "In Defense Of Religious Freedom": "In sum, religious freedom has both personal and public dimensions. It is grounded in the dignity of the human person as possessed of a thirst for the truth and a capacity to know it. The state that recognizes religious freedom as inherent and inalienable, a civil right protected by law, thereby acknowledges its incompetence over the sanctuary of human conscience. Religious freedom is fundamental both to the freedom of the individual human person and to the sustaining of just and limited governments."

A people (or government) that doesn’t care for religious freedom won’t care much about anything else at all.


On the rule of law

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

One comment commonly known is that "all politics is local." Apparently, some politics are more local than others. The reason I got reminded of such is when I was pondering on the meaning of "sovereignty," which people bandy about without really knowing what it means. Sovereignty, nevertheless, is opaque enough a concept so as to allow anybody use of it with minimal fear of being told that the use was in error. Now whether the same can be said for the concept the "rule of law" is something that needs determining.

Vice-President Jojo Binay gave a very good, quite thoughtful speech, last March 2 at the Philippine Trial Lawyers Association’s 34th anniversary celebration. In it, he talked of the fact that "as everyone knows we have become a nation of lawyers. We have one of the highest populations of lawyers, of any country, on a per capita basis. And they have various fields of specialization. But among the lawyers who have earned the highest praise of the public and their peers, three basic categories stand out -- the learned judge or jurist whose decisions have enriched jurisprudence, the writer of books whose work has enlarged the breadth and depth of legal scholarship and has contributed to promoting the law as literature, and the skilled trial lawyer who has made courtroom trial a joy to behold, and whose victories are legend."

The foregoing incidentally reminded me of Senator Juan Ponce Enrile, whose work habits (as recounted by writer Bibeth Orteza) are worth emulating: "He really should sleep early but just the other day, he didn’t hit the sack until 4 a.m., he says. His bedtime varies, depending on the amount of reading he feels he has to do because, he says, he has to study and weigh things as well as he can."

But I have to say, that with regard to the application of the rule of law, one need not have the brilliance or discipline of Senator Enrile. As Vice-President Binay correctly points out, that the rule of law must be applied is "plain even to our common people, not to lawyers alone." This is so because we "cannot depart from due process and the rule of law without renouncing our constitution. The impeachment process should be first and foremost an exercise in the rule of law, never a way of bending the law, or asserting the false supremacy of one branch of government over another, or putting one branch in conflict with another."

The question then to pose is: If people do begin to realize the implications of the rule of law then would they still want to have it? Because, in the end, the rule of law simply represents two things that seem to contradict the present national character: the need to abide by a standard and the discipline to enforce that standard.

But the dilemma also stems from a lack of a workable definition of rule of law that fits our qualities. While definitely not succumbing to the lures of relativism, nevertheless, clearly if one applies Western standards on a culture that is removed from the same, the probability of Asian countries falling short on the matter is obvious. But the same would be true if we randomly pick any strongly identified Asian norm and see how Western countries match up. The findings would most likely be unsurprising.

In any event, there is a need for a more sincere and considered Philippine definition of the rule of law. We simply can’t proceed with our insane insistence of deciding issues depending on whether the players come from a particular family or school. As Vice-President Binay points out (again correctly): "Even in a democracy, the threats to justice and freedom are never permanently subjugated. They could arise, even when least expected, not necessarily from the usually predictable sources, but even from sources that are supposed to protect and defend justice and freedom."

Which brings me to an incident in A Man For All Seasons. When Roper proudly proclaims that he would "cut down every law in England" to go after the Devil, More responds: "Oh? And when the last law was down, and the Devil turned round on you -- where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast -- man’s laws, not God’s -- and if you cut them down -- and you’re just the man to do it -- d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake."

Which then leads me to paraphrase a line from Justice Abad’s marvelous concurring opinion in Arroyo vs. De Lima (serving as an effectively sane counterpoint to Justice Sereno’s dissenting opinion): if we can’t uphold the rule of law, "we might as well close down business."


Justice Abad concurring opinion: confidentiality of judicial deliberations

G.R. No. 199034  --           Ma. Gloria Macapagal-Arroyo, Petitioner, versus Honorable Leila M. De Lima, in her capacity as the Secretary of the Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of Immigration, Respondents.
G.R. No. 199046  --           Jose Miguel T. Arroyo, Petitioner, versus Sec. Leila M. De Lima, in her capacity as Secretary, Department of Justice, Ricardo V. Paras III, in his capacity as Chief State Counsel, Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of Immigration, Respondents.
                                                Promulgated:                                                      December 13, 2011
x ---------------------------------------------------------------------------------------- x   
          Having read the separate dissenting opinions, especially that of Justice Maria Lourdes P.A. Sereno, I am compelled to dwell on two points.
          One.  It is not true that the Court or the Chief Justice has declined to promulgate Justice Sereno’s dissenting opinion, following the vote taken in the case on November 29, 2011.  She agreed to submit her dissent not later than December 1.  But she did not.  Neither did she ask the Chief Justice and the other members of the Court for additional time to submit her dissenting opinion.  Consequently, the Court promulgated its November 29 Resolution in the case without Justice Sereno’s promised dissenting opinion.  The Court did not deny her the right to have her opinion promulgated together with the main Resolution.  She broke agreement by not submitting it on the date set for it.
          Subsequently, Justice Sereno wanted her belated dissenting opinion promulgated on December 2, 2011.  But, since her demand for late and separate promulgation departs from established procedure, the author of the main Resolution asked that such opinion be calendared for En Banc consideration.  She, however, sees this as a suppression of her right to submit a dissenting opinion.  Ultimately, the En Banc decided to break precedents and allow the late promulgation of her dissent together with the concurring opinions of the rest of the members of the Court, like this one, to fairly present a fair picture of the problem that Justice Sereno has created by her failure to abide by simple agreement and the rules.
          Two.  Section 2, Rule 10, of The Internal Rules of the Supreme Court provides for confidentiality of its deliberations.
            Sec. 2.  Confidentiality of court sessions.  – Court sessions are executive in character, with only the Members of the Court present.  Court deliberations are confidential and shall not be disclosed to outside parties, except as may be provided herein or as authorized by the Court.
            The Chief Justice or the Division Chairperson shall record the action taken in each case for transmittal to the Clerk of Court or Division Clerk of Court after each session.  The notes of the Chief Justice and the Division Chairperson, which the Clerk of Court and the Division Clerks of Court must treat with strict confidentiality, shall be the bases of the minutes of the sessions.         
          Justice Sereno has breached this rule, narrating in her dissenting opinion her recollection of the En Banc’s deliberation in executive session on the effect of the petitioners’ failure to comply with the second condition of the temporary restraining order (TRO) that the Court issued in the case. 
          The En Banc had resolved on November 15, 2011 to:
            c)         ISSUE A TEMPORARY RESTRAINING ORDER in the consolidated petitions, enjoining the respondents from enforcing or implementing DOJ Department Circular No. 41 and Watchlist Order Nos. ASM-11-237 dated August 9, 2011-422 dated September 6, 2011 and 2011-573 dated October 27, 2011, subject to the following conditions:
            x x x x
            (ii)        The petitioners shall appoint a legal representative common to both of them who will receive subpoena, orders and other legal processes on their behalf during their absence.  The petitioners shall submit the name of the legal representative, also within five (5) days from notice hereof;
            x x x x
When on November 18, 2011 the En Banc took up petitioners’ supposed compliance with the second condition, it found, by a vote of 7-6, that such condition had not been sufficiently complied with.  After further deliberation, the En Banc took a vote on the effect of such insufficient compliance on the TRO that it issued.  It voted 7-6 that such insufficient compliance did not result in the suspension of the TRO.  Since these votes did not result in any positive action that would affect the TRO, the same were not embodied in the resolution of that date. 
          On further consideration at the request of Justices Carpio and Sereno during its En Banc session on November 22, 2011, the Court voted to take note of the November 18 voting and clarify that the TRO was not suspended even with the finding that there was no full compliance as of November 15 with the conditions of the TRO.  The pertinent part of the Court’s resolution reads:
            x x x  On November 18, 2011, the Court by a vote of 7-6, found there was no sufficient compliance with the second condition of the Temporary Restraining Order issued on November 15, 2011.  However, by a vote of 7-6, the Court ruled that the TRO was not suspended pending compliance with the second condition.  Thus, the Court resolved to CLARIFY that the TRO was not suspended even with the finding that there was no full compliance with the conditions of the TRO.”
            x x x x
          Relying on their personal recollection of the En Banc discussions on the effects of petitioners’ failure to fully comply with the second condition of the TRO, Justices Carpio and Sereno claim that the Justices voted 7-6 on a proposition I submitted that there was no need to state that the TRO had been suspended since that was the effect of the non-compliance with its conditions. 
          I may have suggested the point sometime during the debate but I recall withdrawing it when I realized that the TRO did not subject its issuance and effectivity to petitioners’ prior or immediate compliance with such conditions.  Indeed, the collective recollection of the majority of the Justices who did not join Justices Carpio and Sereno’s dissents is that the vote was taken to conclude categorically that the non-compliance did not suspend the force and effect of the TRO. 
          When the proceedings in any collegial meeting is intended to be preserved and cited as a memorial of what had taken place in such a meeting, the proceedings are recorded.  This is true of Congress of the Philippines and of the Constitutional Convention.  But when what is important in a collegial meeting are the actions or the resolutions that the body passed by votes, only such actions or resolutions constitute a faithful recording of the body’s will.  This is true of the sessions of the Supreme Court, past or present. 
          The main purpose of En Banc or Division sessions is to deliberate on and decide the disputes between contending parties in the cases before it.  And its decisions are, by Constitutional mandate, written by a member upon authority of the Court.  The Court’s deliberations are not evidence of what it voted on.  That vote is restricted within the confines of the written order, resolution, or decision that it issues.      
          The Court’s deliberations are confidential simply because the Court realizes that only by making it so can the Justices freely discuss the issues before it.  Broadcasting such discussions to the public would have a chilling effect on those who take part in it.  One would be careful not to take unpopular positions or make comments that border on the ridiculous, which often is a way of seeing the issues in a different perspective.  Personally, I often take temporary positions on issues, weighing each one as the discussion goes.  I could take the role of a devil’s advocate before settling on the opposite view.  The danger, as what has happened here, is that Justice Carpio and Sereno may have taken something I said out of context or before I made up my mind when the voting took place. 
          If our deliberations cannot remain confidential, we might as well close down business.
                                                          ROBERTO A. ABAD
                                                    Associate Justice


VP Binay speech on the legal profession and the rule of law

Full text of the speech of Vice President Jejomar C. Binay during the Philippine Trial Lawyers Association, Inc. 34th Anniversary Celebration, Centennial Hall, Manila Hotel, 2 March 2012 (http://ovp.gov.ph/speeches.php?id=510):

Just like salt, the legal profession never loses its flavor, but among all the professions, it seems to be the current flavor of the season.

Only a couple of days ago, close to 2,000 successful bar examinees joined the profession. And for the past seven weeks at least, the nation’s attention has been riveted on the work of lawyers in the ongoing senate impeachment trial of Chief Justice Renato Corona of the Supreme Court.

Thanks to the trial’s live television coverage, we have seen what good trial lawyers can do to turn an otherwise boring afternoon into an exciting one, and give some reigning media celebrities a run for their money on Facebook and Twitter.

The presiding judge of the impeachment court, Senate President Juan Ponce Enrile, is 88, and the lead defense counsel, retired Justice Serafin Cuevas, is 83, but they have become the rock stars of the trial even among the young, because of their demonstrated courtroom skills. Both have long careers as trial lawyers.

I hear of many young people thinking of going into the study and practice of law because of these two veterans. Many law deans expect the enrolment in their law schools to jump after this trial. And not a few young lawyers could end up running for congress next year in the hope of acting as prosecutors at the next impeachment trial, if there is another.

As everyone knows we have become a nation of lawyers. We have one of the highest populations of lawyers, of any country, on a per capita basis. And they have various fields of specialization.

But among the lawyers who have earned the highest praise of the public and their peers, three basic categories stand out----the learned judge or jurist whose decisions have enriched jurisprudence, the writer of books whose work has enlarged the breadth and depth of legal scholarship and has contributed to promoting the law as literature, and the skilled trial lawyer who has made courtroom trial a joy to behold, and whose victories are legend.

For 34 years now, the PTLA has been the home of our trial lawyers. And some of the best are with us this evening. It will be the honor and distinction of this organization to produce and nourish many more of them.

Under the dynamic leadership of Pete Principe of Bulacan, ably supported by the newly inducted national officers for 2011-2013, I have no doubt that PTLA will carry on the torch of leadership bequeathed by PTLA’s “36 founding fathers.”

I speak as a humble PTLA member. Yes, that’s right, I am a bonafide PTLA member. My name is listed as number 95 in our roster of more than 700 members. And as such, I am proud of PTLA’s history and confident of its great future.

During the critical days of Martial Law, when the fight for civil liberties demanded the best and the most from our lawyers, the needy found it not only in the Integrated Bar Of the Philippines, but above all in our association of trial lawyers.

The best among us organized various groups precisely to champion the fight. Thus were born such organizations as the Free Legal Aid Group (FLAG) under the great nationalist Jose Wright Diokno, the Movement of Attorneys for Brotherhood, Integrity, Nationalism, Inc. (MABINI) led by the human rights lawyer Augusto “Bobbit” Sanchez, and, of course, the PTLA under the tireless and pro-poor Procopio “Jun” Beltran.

And while those in charge tried to cover the nation with dark power, the light of justice burned stubbornly from those lawyers organizations.

We have since won that struggle. But the fight for justice and liberty is never permanently won. It goes on forever.

Even in a democracy, the threats to justice and freedom are never permanently subjugated. They could arise, even when least expected, not necessarily from the usually predictable sources, but even from sources that are supposed to protect and defend justice and freedom.

This is what we, lawyers, must always watch out for. We may sometimes need to rest from our labors, but it seems that even in a democracy we can never afford to sleep anymore. Or that if we must sleep at all, we must do so with one eye open.

I began by speaking to you about the fascinating performance of our trial lawyers at the impeachment trial. There are no two conflicting opinions about it. The verdict seems unanimous in their favor.

But we are not simply to enjoy watching the performance of our colleagues at the bar. As lawyers we are expected to do something more. Much more.

We are to stand as sentinels over the health and vigor of our constitutional democracy and its institutions.

We are to stand as neutral observers in every proceeding in which we are not participants, but we should be prepared to intervene whenever the balance of justice and fairness shifts in favor of power, and the rule of law and due process are threatened.

Justice ---“impartial justice,” at that, as the senator-judges have sworn to uphold---must always be the object and fruit of our exertions in the law. We should never have reason to repeat Cicero’s reproach that “The more law, the less justice”---summum ius summa iniuria.

Our fundamental commitment to the law is to make sure that at no time should it ever work injury or injustice to anyone.

For as Black says, lex nemini injuriam, lex minimi operatur iniquum---the law does injury to no one, the law works injustice to no one.

For this reason, I commend the PTLA for making clear its position on the inviolability of the constitution in the ongoing trial, particularly with respect to the rights guaranteed under the Bill of Rights, and the separation of powers among the three branches of government.

We cannot depart from due process and the rule of law without renouncing our constitution. The impeachment process should be first and foremost an exercise in the rule of law, never a way of bending the law, or asserting the false supremacy of one branch of government over another, or putting one branch in conflict with another.

We cannot repeat too much or too often the constitutional verity that while the house of representatives has the exclusive power to initiate all cases of impeachment, and the senate the sole power to try and decide such cases with finality, free from the interference by either the executive or the judiciary, the unique autonomy of that process does not place it beyond the reach of judicial review, where there has been a grave abuse of discretion, amounting to an excess or lack of jurisdiction, which the supreme court alone is empowered and obliged by the constitution to resolve.

I am particularly delighted to hear the view that where the Supreme Court has spoken on any constitutional issue, it is the duty of the two other branches of our tripartite government to comply with its ruling, and not subject their compliance to a vote.

This is a view that seems to have become plain even to our common people, not to lawyers alone. And against any attack, we must defend it with all our integrity and ability as lawyers.

Finally, I share the firm conviction of the officers and members of PTLA and the general public that a fair and impartial trial----and only a fair and impartial trial---- of Chief Justice Corona, unclouded by suspicions or actual accusations of misconduct and improper dealing on the part of any participant in the proceedings, or on the part of those whose legitimate right and duty are simply to observe the proceedings without seeking to intervene in the outcome, would be a great boon to the nation.

Thank you all once again, and my most sincere



Of decent indecent dissents

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

It was quite disconcerting last week to see Justice Secretary Leila de Lima answering the way she did in the witness stand at the impeachment trial of Chief Justice Renato Corona. For one who had taught law as long as she has, along with (presumably) respect for it, her answers were (to put it politely) quite disappointing to her former students (such as myself). If her answers were sincere (and the courteous presumption is that they were), then she revealed an appreciation of the law that is sorely lacking in depth.

By admitting (in so many words) under the questioning of Senator Juan Ponce Enrile and Justice Serafin Cuevas that she would have refused to carry out a disputed Supreme Court temporary restraining order, she was -- in effect -- arrogating unto herself a function or mandate that the Constitution assigned to the Supreme Court. But the Constitution, being the product of the sovereign act of the people, she essentially, therefore, declared that her judgment and intelligence are far better than the rest of the Filipinos. The weightlessness of her justifications are seen from the fact that one can easily refute them by two legal/philosophical cliches: might does not make right and the ends do not justify the means. To that I add a third and fourth: "Do unto others what you want others do unto you," and "Whatever you do to the least of My brethren, you do unto Me."

And her reliance on dissenting opinions, particularly to rely on the dissenting opinion of Justice Maria Lourdes Sereno, is misplaced, mistaken, and utterly misguided.

Dissenting opinions have practically no weight as legal arguments. They are, in fact, of lower persuasiveness compared to published articles by legal commentators. At the least, it provides psychological comfort to the losing party of the case the dissenting opinion was given or to be quoted by pompous lawyers during parties wanting to impress better lawyers. At most, it perhaps gives an indication of "future wisdom" that the Supreme Court may adopt, which has happened in the case of the dissents of US Supreme Court Justice Oliver Wendell Holmes.

However, Justice Holmes’s dissents were the exception rather than the rule, for which several things must be considered: for one, they would have remained of minimal value were it not for their eventual adoption by the US Supreme Court. More importantly, his dissents were elegant thoughtful works by a first-class intellect that focused on legal arguments rather than being gossipy allegations of intrigues against his colleagues.

For that matter, it must be mentioned that dissenting opinions are relatively modern occurrences. Even now, such is certainly not a common thing. Take the United Kingdom. In a study cited by Chris Hanretty, comparing "the House of Lords, the US and Canadian Supreme Courts, the Australian High Court, and the South African Supreme Court of Appeal and, from 1995, the Constitutional Court… the House of Lords, as was, displays much greater comity than its Canadian, Australian or American counterparts, and is only bested in the percentage of unanimous decisions by the South African courts." Even in the US Supreme Court, great care is taken in making dissents. As John Frank wrote, random or inappropriate dissents "weaken the institutional impact of the Court and handicap it in the doing of its fundamental job. Dissents… need to be saved for major matters if the Court is not to appear indecisive and quarrelsome."

Furthermore, proper dissents focus only on legal arguments. They are not supposed to disparage or demean fellow members of a court. What does it matter if a judge or justice is known to be leaning towards certain political or philosophical considerations if in the end his legal arguments are reasonable and logic is justifiable? It also leads to this point: internal judicial deliberations (like the president’s cabinet meetings) are and should always remain confidential. As Paul Woodruff (in his article "Paideia and Good Judgment," 1999) wrote: "The best defense against error is to give full play to opposing arguments and to sift them carefully for potential defeaters of the conclusion you are inclined to accept. A person of good judgment…. should be capable of constructing arguments on both sides of an issue." To make public court deliberations remove that possibility. Besides, nobody likes an uncouth person displaying dirty laundry.

Finally, alone among the top of the three branches of government, it’s only the members of the Supreme Court that are required to possess "proven competence, integrity, probity, and independence." Righteousness (not self-righteousness), as well as maturity, self-restraint and being psychologically able to work collegially are what’s needed in a Supreme Court justice. The weakest among the three, the Supreme Court’s authority rests delicately on its unified voice, dignity, and prestige. Anybody, whatever declared good intentions, who robs our Supreme Court of those does not deserve respect for him or her opinions.