Educating legal education

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

The not-so-subtle message conveyed by rabid impeachment supporters was their disgust over "legal technicalities" and how lawyers are obstacles at "arriving at the truth." Such shows a profound misunderstanding of the essence of law and the function of lawyers in society. But the blame, ironically, ultimately falls on us lawyers. By our actions and our inability (or ignorance) to convey the nature of the profession, the public itself has been lured into believing the misleading propaganda about the true demands of a properly functioning legal system. And, consequently, democracy as well.

Certainly, there’s a lot to criticize about a legal education that produces lawyers (although loudly self-righteous) with little or no respect for the rule of law. When you have lawyers who think nothing of breaking the evidentiary rules or the Constitution, dishonest in revealing their sources of evidence, or coach witnesses to lie regarding the alleged "facts" they declare before a tribunal or the media, then you know there is something incredibly wrong with the present training into the profession.

The other thing the impeachment case revealed was the utter incompetence displayed by a number of the lawyers that prosecuted it (regardless of the result). While the public, perhaps for political reasons, are forgiving (even maybe encouraging) of such ineptitude (approaching stupidity), nevertheless, the profession itself must take a long hard look as to how we form our lawyers so that pathetic displays of lawyering be not repeated in the future. Otherwise, we are just allowing the legal profession’s slide into triviality.

As I wrote years ago, which unfortunately is becoming more apt today: "Lawyering now seems to be relegated to a matter of flashiness, presentation, of glibness and marketability. Of Blackberries and laptops, of designer suits and fashionable parties. Gone seemingly are the days when the law has been described ‘as a lonely passion,’ of the rumpled solitary individual buried beneath his files and his books. At least in the olden days, despite the corruption that even then has been complained of, eloquence and purpose was apparent. Today, even that has gone. I have had students who could talk your ears off in highly voluble and fashionably phrased social conversations but who could not create, in speech or in writing, a decently coherent, in style and substance, piece of argumentation. These lawyers could talk to you of shoes by Manolo Blahnik, the latest trends in pop psychology, their takes on deconstruction by Derida but could not -- in class or in practice -- summon the appropriate craftsmanship necessary to defend their clients’ interest in court that would be upheld if were left in the light of day."

Which leads to another thing wrong with present legal education: rewarding those that seek popularity rather than the duty to be intellectually humble, honest, and precise. In this regard, I’m reminded of Bryan Magee in his "Confessions of a Philosopher": "Instead of writing as clearly as they could they deliberately chose to be obscure, because they wanted to impress. They put whatever they had to say into long convoluted sentences full of abstract nouns and technical terms, sentences which it is difficult for even the most intelligent readers to think their way clearly -- though when they have, it is surprising how often it turns out that not much has been said."

Consider a random passage from a local "legal scholar": "Scrutinizing the visual description in the curvature within the democratic framework makes a comparative grounding from a liberal perspective furnishing a metaphorical area for normative advocacies. Such problematique acquires an expanding accretion, broad prescience, and juristic clarification of institutional dynamics that categorizes the dualist character from the perspective of conceptual and practical progression."

Actually I made it up by culling from the writings of various legal intellectuals. But how anyone who writes such drivel as that above can be considered an "intellectual" is beyond me. If you found that passage spouting nonsense, you’re right. And yet, journal after legal journal are full of such gibberish. Making us complicit in teaching future great lawyers to write (and think) in this grand manner of confusion.

This is the necessary time to reexamine how we educate future lawyers. Aside from our society’s obviously growing disrespect for the rule of law and misunderstanding of the nature of the legal profession, there is also that aspect of the very relevance of the profession itself. As opined by the New York Times (Legal Education Reform, 25 November 2011): "The economic downturn has left many recent law graduates saddled with crushing student loans and bleak job prospects… Yet, at the same time, more and more Americans find that they cannot afford any kind of legal help. Addressing these issues requires changing legal education and how the profession sees its responsibility to serve the public interest as well as clients."

Like it or not, lawyers are here to stay. We just need a better kind.


Gay marriage is not a human right

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

Recently, a television talk show host had a discussion on gay marriages, which ended with her labeling those opposing such marriages as "living in the dark ages." Such display of self-righteousness exemplifies the problem faced by those who seek an honest and intelligent discussion on the subject. Uninformed categorizations, resort to insults of bigotry or intolerance, and popular media’s penchant for emphasizing emotion rather than facts will not make us nearer to approaching a proper national determination on the issue of same sex unions.

On several aspects, same sex unions present a bewildering number of complications, particularly in relation to constitutional, labor, civil status, contract, education, welfare, tax, and even penal law provisions. The most obvious area of contention would be with regard to the extent that conscience rights of citizens have leeway in approaching the issue. From there would be a gamut of other questions, from adoption to welfare and tax benefits to employer rights (and, yes, employers have rights), specifically in education, the military, or charitable institutions.

Contrary to the CNN-fixated, the announcement by US President Barack Obama supporting gay marriages is, in the larger scheme of things, virtually inconsequential. The statement (a change in position that Obama defenders declare as an "evolution") was made in the midst of an impending campaign to retain the presidency and -- this according to gay rights activist Andrew Sullivan himself -- to acquire funding from gay supporters and to court the youth vote. However, this does not eradicate the fact that of the 50 states that make up the United States, only six allow gay marriages, while 42 states have laws specifically banning it. There is also the federal Defense of Marriage Act, which declares that no US state can be compelled to recognize same sex unions, marriage being defined as that between a man and a woman. It is worth noting that the Act was signed into law by US President Bill Clinton and supported by huge majorities in Congress.

All of this must be taken under the context of international law. The UN Human Rights Committee (in Joslin vs. New Zealand, Communication No. 902/1999) declared that marriage under Article 23.2 of the International Covenant on Civil and Political Rights refers expressly to "’men and women’, rather than ‘every human being’, ‘everyone’ and ‘all persons’" and, thus, the conclusion that, under the ICCR, marriage could only be a "union between a man and a woman."

The European Court of Human Rights certainly supported this reading, repeatedly holding that gay marriage is not a human right. In Gas and Dubois vs. France (Application No. 25951/07; 2012), the ECHR stated that the European Convention on Human Rights do not require member states to allow marriage to homosexual couples. The ruling essentially reiterated the ECHR’s finding in Schalk and Kopf v. Austria (Application no. 30141/04; 2010), which pointed out that, despite very detailed arguments by the homosexual lobby, there is simply "no right to marriage for homosexuals under the European Convention of Human Rights."

The substantive take-away from both rulings is the fact that there is no international legal obligation for States to recognize homosexual unions. Definitely, no such obligation exists under the ICCR or ECHR. And neither can such obligation be found under customary international law. The latter requires the combination of two elements: "practice" and "opinion juris." The latter is arguably absent considering the two above-mentioned rulings. In the case of "practice," it would be very hard to argue the presence of such when one considers that amongst the around 200 countries in the world, only 10 authorize same sex marriages. Again, context is important. As pointed out by Time Magazine’s Dan Fastenberg ("International Gay Marriage," 2010), "nine of the 10 countries that have legalized gay marriage operate under the civil-law system. That tradition...was the basis of the Napoleonic Code, created by the French leader to subvert the church." In other words, politics and power, rather than social, familial, or cultural considerations, contributed to the legalization of such unions.

Finally, the ECHR in Gas and Dubois made a crucial point: in denying such same sex unions, no wrongful discrimination was made. Again, contrary to what most people think, laws (including our Constitution) do allow for discrimination. What a just system does not allow is "wrongful discrimination." As Richard W. Garnett, Law Professor at Notre Dame Law School, says: "it is not true that ‘discrimination’ is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it -- say, through its expression and spending -- even when it is wrong. ‘Discrimination,’ after all, is just another word for decision-making, for choosing and acting in accord with or with reference to particular criteria."

One thing to be noted: no religious doctrines were resorted to in this article. Instead, legal (particularly international law, indirectly natural law) form the core of the discussions made above.


Morality in public life

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

The ironic thing of writing about morality in public life is that people immediately dismiss the same as plain naivety or childish idealism. However, the truth of the matter is that to require morality in public life, more so for our political leaders, is actually a matter of clear-eyed pragmatism based on cold calculation. We should indeed demand a more moral set of leaders (to be differentiated from the self-righteous jerks we have right now) not because it makes us feel warm and cuddly all over but because of the sheer benefits, material or otherwise, that it could give us.

In Gorgias, Plato makes claims that we would do well to take heed: given a choice between the superficial and passing rewards of material or popular success and striving to achieve a true morality in one’s life, the latter should be chosen without question. However, even with such a radical claim (and "radical" is a word carefully and deliberately employed for a position that was made more than two thousand years ago), Plato ups the ante even more: that to suffer harm while doing good is far preferable to doing harm in order to achieve material success. 

Gorgias is actually a dialogue that Plato has Socrates conduct with three separate individuals: Gorgias himself, who could be considered today as a media personality in the shallow ANC talk show host-type mold; Polus is ancient Greece’s equivalent of the activist youth that inevitably loses himself amidst the world’s complexities, and Callicles is the cynical know everything businessman or politician. Plato’s Socrates runs intellectual circles around the three, showing the ill logic of their positions, and how in the end (and in which perhaps is the boldest claim of all and one I happen to agree with as applied to present day Filipinos) the three happen to be in agreement with him all along and that they were merely denying or suppressing such agreement.

Plato shows us that real power (and freedom) is one based on the true application of one’s will. However, contrary to what the "anything goes" liberal or pro-reproductive health crowd tells us, this application of will has to do with the employment of reason and one that is free from compulsions. One cannot be considered free unless one is not enslaved by one’s passions. And one is free from one’s passions only by sheer order of the mind and the relentless application of self-discipline.

The foregoing, it must be emphasized, is a position framed not by a religious or devout Catholic (which allegedly smart people consider as a stupid thing to be nowadays) but by a philosopher utilizing pure logic born centuries before Christianity. But the consequences and implications of the same are clear, particularly as to how it relates to the present contraception debate or on the alleged equal rights advocacy for same-sex unions (repeatedly denied although such is obviously the case) by the homosexual lobby. While pluralism and tolerance are indeed necessary in a proper functioning society, yet such must be governed by right reason.

And the benefits of Plato’s path can be seen throughout history. David Brooks, writing of US President Abraham Lincoln and his battle with personal demons: "He would, of course, climb out of it. He would come to terms with his weaknesses, control his passions and achieve what we now call maturity. The concept of maturity has undergone several mutations over the course of American history. In Lincoln’s day, to achieve maturity was to succeed in the conquest of the self...He knew he was ferociously ambitious and blessed with superior talents -- the sort of person who could easily turn into a dictator or monster."

"Easily turn into a dictator or monster." The phrase is chilling when read in relation to a man "blessed with superior talents" but horrifying in the context of an inferior, untalented, or immature person that was handed with the reign of power.

The bright side, as it usually is, lies with our very young. Contrary to their self-indulgent, self-righteous, self-obsessed predecessors, the youth today in their tens and teens seems more grounded, disciplined, and more intellectually curious in the honest sort of way. Interestingly, a Guardian article (in March 2004) introduced this fact: "young people are a lot more conservative than their elders might think. Forget Cool Britannia. Young people want a society that frowns on abortions, upholds the institution of marriage, takes a hard line on drugs, and punishes its criminals severely, a survey has found." And quite gratifyingly, contrary to the designs of liberals, the "study also found 92% believed in marriage, and 60% felt it was best for couples to marry before having children."

The Guardian article’s conclusion is a fitting finish for this article as well. Filipinos should take heed not to continue "the damage caused by the lax attitudes of adults inflicted on children." After all, better leaders require better voters.


ITLOS'ing China

is the subject of my Trade Tripper column in last Friday-Saturday's issue of BusinessWorld:

As much as we’d like to settle China’s territory recognition disorder problem, there are certain things that simply can’t be done. The complexity of the International Tribunal for the Law of the Sea (ITLOS) dispute settlement system requires China to accept our proposal to elevate the case to the ITLOS. Unlike domestic tribunals which can acquire jurisdiction by mere service of summons, international tribunals operate within the constraints of state sovereignty.

In other words, the only way an international tribunal can have jurisdiction over the case is if the state parties to the dispute actually give their consent to be subjected to such jurisdiction. And China pointedly rejected the jurisdiction of the ITLOS when it made the following declaration upon joining the United Nations Convention on the Law of the Sea (UNCLOS): "The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention."

China’s reference to Article 298 means that "it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes": disputes concerning the interpretation or application of articles 15, 74, and 83 relating to sea boundary delimitations, or those involving historic bays or titles; disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297; and disputes in respect of which the Security Council of the United Nations is exercising its authorized functions, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in the UNCLOS.

It is pointless to say that the Philippines can go to the ITLOS by not asking for the settlement of the territorial dispute but merely to resolve maritime issues involving the waters under Philippine jurisdiction. This is because, as alluded to above, the Chinese rejection already covered even that: Article 15 (on the delimitation of the territorial sea between opposing or adjacent coastal states); Article 74 (on the delimitation of the exclusive economic zone between such coastal states), and Article 83 (regarding the delimitation of the continental shelf again between said coastal states). All three articles fall under Article 298, paragraph 1.a referred to by the Chinese in its declaration.

The phrase "compulsory dispute settlement procedures" is admittedly a misleading term which has confused a lot of people. It is compulsory because it refers a dispute to arbitration as the mandatory mode of settling a dispute whenever the parties have not come to an agreement as to what mode they have selected (the choices are the ICJ, ITLOS, or arbitration). But this presupposes that the parties already agreed to bring the matter to dispute settlement. Because despite the words "compulsory" or "mandatory", the UNCLOS dispute procedure is still consensual in nature. As we know already, the Chinese has refused our invitation to bring the matter to dispute settlement under UNCLOS rules.

Arguably, there are possible areas where a "compulsory" or a unilateral claim being made before the ITLOS could plausibly be argued. These are those circumstances falling under Article 297, paragraph 1.c (i.e., "the protection and preservation of the marine environment") or paragraph 3.a (i.e., "fisheries"). However, the same is not recommended, being fraught with risks because a) it could potentially subject the Philippines to an embarrassing international loss before an international tribunal due to ignorance of international law, with the residual effect of weakening our claim over the areas; and b) it makes our DFA officials and the rest of government look as if they’ve been remiss in their duties when actually they cannot proceed under ITLOS rules because of China’s refusal. It also makes the country look like it’s been sleeping on its rights, perhaps even estopped, if this were true when clearly it’s not. Even calls for bringing China to ITLOS for conciliation is misplaced because even at that level we still need China’s consent. After all, even assuming we could properly unilaterally bring the case to ITLOS, if China insists in refusing to join us there, we would have no recourse to address such situation as contempt measures or injunctions could not imaginably be issued and enforced against China.

In this regard, like the ICJ or the GATT dispute system before the WTO, the fount of knowledge for the ITLOS dispute settlement system is the Registrar, for which it is recommended that it be consulted, not on whether a case could be filed (the provisions itself are controlling), but merely as to their opinion. It must also be considered that China has a sitting member in the ITLOS: Zhiguo Gao. We don’t.


Trade's continuing relevance

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

International trade as part of the national discussion has certainly taken the backseat. Except for the recent (and, frankly, quite avoidable) crisis involving the hog and poultry raisers, the importance of trade has been largely ignored. True, developments in the international sphere, the clogged discussion that is the Doha Round, and continuing uncertainties in the financial sector all contribute to rendering trade as unappealing a subject as can be.

Also, as previously observed, some public commentators have even been emboldened in calling for an end to the World Trade Organization (WTO). As old, rehashed arguments go, the suggested route is to resort to free trade agreements. However, as anyone who has been following this column already knows by now, free trade agreements are not free. For a developing country like the Philippines, that should be disconcerting. Clearly, free trade arguments are currently structurally designed to benefit developed countries. For developing countries, with its limited resources, the reverse is true.

The problem of lopsided trade agreements is further aggravated by the fact that a certain amount of insecurity is fostered on developing countries by the developed countries. In the case of the European Union or the United States for instance, certain demands are made in relation to their definitions of what constitutes good environmental, labor, or rule of law policies. But this attitude ignores the fact that,in terms of international trade compliance, particularly in relation to dispute settlement awards, it has been the developed countries that exhibited quite ornery behaviors. Furthermore, when one considers the fact of racial or religious intolerance present in those countries, then the question of whether the Philippines meets the standards of the developed countries should actually be reversed: do such developed countries meet the needs and standards of the Philippines?

Nevertheless, to return to the original point, trade (along with foreign direct investment) is necessary and trade we must. WTO Director General Pascal Lamy, in his speech in Minneapolis last April 17 (The Changing Times of Global Trade) pointed out that: "The times they are a changing. This is true in terms of technology, geopolitics and social norms. It’s true as well in terms of world trade. Factors large and small are changing the way we trade in the 21st century. Certainly, trade retains its central place in the global economy. Indeed, even though trade volume expanded rather marginally in 2011, the value of trade reached a record $18 trillion. Moreover, nearly every government in the world takes the view that trade must be on the menu of options to generate growth and jobs."

However, Mr. Lamy was also quick to point out that "in a great many other ways, the nature of trade has changed immeasurably." And he very quickly pointed out that delays in trade is costly: "The longer a shipment is held up in port or at customs, the more it costs the exporter and the importer. Every extra day required to ship goods reduces trade by 1%. On an average sea voyage of 20 days, one extra day at sea results in a 4.5% drop in agriculture trade between any two trading partners. Overall, the OECD (Organization for Economic Cooperation and Development) estimates fees, formalities and clearance procedures constitute roughly 10% of the value of any trade transaction. Globally, that’s about $1.8 trillion. The OECD also estimates that a WTO deal on trade facilitation would reduce those costs from 10% of the value of trade to 5% of its value. That comes to a cool $900-billion gain for businesses globally."

And in a world of rising unemployment, it must be noted that the "link between trade and jobs is complex…[nevertheless], we know that those countries practicing open trade policies grow faster than those with closed policies. The World Bank tells us that they grow three times faster. [And] the ILO (International Labor Organization) said that the efficiency gains from trade lead to positive overall employment effects in numbers of jobs and the level of wages."

The fact remains that, contrary to what those protectionist advocates that have suddenly found the confidence to be very vocal say, "open trade is very closely correlated with economic expansion." Long-standing wisdom still applies: protectionism hinders growth, and thus constricts the necessary adjustments demanded by a fast changing economy. And the changes always do come, adjustments that are delayed would ultimately come back to haunt a country that "protected" its historically uncompetitive industries, with the result that the adjustments made later cost more. Furthermore, restricting trade affects the proper application of human rights laws. This is logically so because trade partners demand transparency of each other. The same logic goes for environmental protection. Besides, one needs money to protect the environment, as well as raise people’s quality of life.

As it stands, the more things change the more they stay the same: a managed, smarter trade? Yes. But bottom line: we still need a more open economy.