Psychology and international trade

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

Last week I discussed some points regarding the Philippines’ creeping “entitlement culture,” as well as our long held paternalistic political culture (some say “maternalistic” but let’s not get into that right now). This week I’d like to examine how such cultures and our own psychology as a people might affect our ability to engage in international trade.

It’s a subject I’ve long been interested in and oft recommended that people more capable than I take a deeper and more scientific look into. The premise is simple: if international trade works on the idea of competition, which doubtless entails making certain demands on its participants, then how does our culture enable or hinder us in meeting those demands? Put another way, if international trade requires that a country gives its best in a concerted and sustained manner, then how does that square with the Philippines’ seeming entitlement and paternalistic cultures, where people are encouraged to abandon the need to think because our government will “take care of them” anyway?

It’s a question worth asking. Because if seniority and not merit is what counts, or family and connections rather than talent, if promotions are based not on abilities but on who would least offend the feelings (or “loss of face”) of those constituting the established order, then how does that allow us to meet the demands of today’s international economic realities?

First of all, forgetting momentarily the need to compete with other countries, does our culture even allow us to progress as a country? As Forbes magazine noted in 2010, “the easiest route to the top is to be born into the clique of families that have controlled the country for generations, including under a half-century of US colonialism... Decades of mismanagement and dynastic rule have left the Philippines, once ranked second to Japan in postwar Asia, lagging far behind neighbors like Thailand and Indonesia. Foreign investors chasing growth gave a wide berth to the Sick Man of Asia, as the country became known.”

Which makes sense. The Philippine’s insistence on seniority (as well as deference and sentiment) rather than talent resulted in the Philippines scoring poorly in the Power Distance Index (a standard mentioned in Malcolm Gladwell’s The Outliers). The Index “measures the extent to which the less powerful members of organizations and institutions (like the family) accept and expect that power is distributed unequally. It suggests that a society’s level of inequality is endorsed by the followers as much as by the leaders.” Socially and economically developed countries score well, while the Philippines posted the fourth worse score (amongst the likes of Panama and Guatemala).

Also, before we think of competing, is the question of whether our people actually welcome the idea of competition itself. Note that we don’t have a word for “competitive,” which would’ve indicated we value that trait akin to ambition, of the need to excel, of elevating oneself over others, succeeding by merit without having to drag others down. “Paligsahan” (for “competition”) is not really the same as it connotes games more than anything. “Pataasan” (for “competitiveness”) perhaps even illustrates our distaste for the idea, with its rather negative tone.

With this in mind, the findings of Simon Kemp (“Psychology And Opposition To Free Trade,” World Trade Review, Feb. 16, 2007) are relevant: “... the enthusiasm of the general public for free international trade might be less than that of the economist. Six specific reasons are advanced: (1) lay views of utility emphasize employment over consumption; (2) status quo bias results from loss aversion; (3) people think altruistically but parochially; (4) people often consider fairness in bargaining situations; (5) people may hold inappropriate fixed pie beliefs; and (6) people may misunderstand Ricardo’s principle of comparative advantage.”

Finally, international trade logically requires that a people trust each other and their country’s institutions. So ask ourselves: how truly do we trust our fellow countrymen as Filipinos (rather than merely regionally) and our institutions? As Karl Kaltenthaler and William J. Miller (“Social Psychology and Public Support for Trade Liberalization,” International Studies Quarterly, June 4, 2013) states: “The level of social trust an individual has will condition the degree to which an individual wants to open her country to imports from other countries. Those individuals with lower relative levels of social trust are less likely to support the notion of freer trade.”

The foregoing should be read in complement with John Nye’s “What Determines Trust? Human Capital vs. Social Institutions: Evidence from Manila and Moscow” (National Research University, 2012): “It is now well established that highly developed countries tend to score well on measures of social capital and have higher levels of generalized trust. In turn, the willingness to trust has been shown to be correlated with various social and environmental factors (e.g. institutions, culture) on one hand, and accumulated human capital on the other.”

All the foregoing illustrates the first rule of competing in any arena: know oneself.

Why religious freedom may not work against the RH Law

People like using religious freedom arguments (based on Article III, Section 5 of the Constitution) because it has a nice ring to it: it's catchy and gives a righteous feeling for those who employ it.

Unfortunately, a lot miss the point (including those who should know better) about the nature and scope of religious freedom in relation to constitutional law. In the same way that religious freedom was misused in the Bacolod "Team Buhay/Team Patay" case (considering that it was a case that really should have revolved around election law provisions and the specifications regarding campaign materials), there is always the risk that the religious freedom argument may be wrongly employed in the present Supreme Court case against the RH Law. 

Below therefore are some basic points for law students and laymen on the concept of religious freedom under constitutional law.

Religious freedom arguments, by nature, work on the idea of exemption. Take for example the Flag salute case of Ebranilag or the live-in arrangement in Estrada, what is sought is not to render the laws subject of those cases unconstitutional but to ask that an exemption from its application be made with regard to those religions adversely affected by it.

Hence, what a petitioner in a religious freedom argument is saying is not that the law is unjust but only in that the law is unjust insofar as it hinders in the free exercise of their religion.

Generally speaking, therefore, to ask that a particular law be made unconstitutional in its entirety just because it happens to offend one's own particular religion is illogical and contradictory. It would also have the consequence of effectively imposing any religion's will on the rest of society.

Furthermore, the religious freedom argument also leads to other, even more complicated, questions. Because, if for example an exemption is indeed granted, how then would such exemption be applied? In the Ebranilag and Estrada cases, detailed conditions were laid out by the Supreme Court that must be complied with. However, in the case of the RH Law, how can such exemptions be given when the law itself does not force Catholics to use contraceptives? And this within the context that a substantial majority of Catholics are in favor of contraceptives. If the religious freedom argument were used only in relation to government health workers, then the same could easily be cured by the use of the separability clause.

The foregoing is assuming that it will be proven that no State interest will be served, that there is indeed a burden to religious rights, and that there is indeed sincerity in the religious belief. Then one would also need to overcome the "general and neutral test" and the "strict scrutiny test". Otherwise, the religious freedom will have to be set aside in favor of genuine State interest, such as what happened in the Lagman and Zosa case.

This nature of religious freedom arguments is further illustrated by the case relating to Jehovah's Witnesses and blood transfusions. As Mark Shea explains it: "What about JW’s and blood transfusions? Would I want a JW employer to be able to deny me blood transfusion coverage due to his moral issues with the procedure? Does preventing that violate his conscience rights?"

As another commentator puts it: by arguing religious freedom against the HHS Mandate (a controversial US law that seeks to provide free contraceptives as part of healthcare), does it mean we are arguing for "the duty of the state to sanction and protect the 'right' of these folks to use illegal controlled substances for their religious worship. We have to allow for protection of Santeria practitioners to sacrifice small animals. We have to stand shoulder to shoulder with orthodox Jews in Germany who are arguing against a ban on religious circumcision (even though the Council of Florence taught that circumcision for religious purposes is a grave sin).

But, if we argue against HHS on grounds of liberty, what grounds do we leave ourselves to argue against the legitimacy of any other practice? Seventh Day Adventist gatherings on Saturdays where the Catholic Church is attacked and blasphemed as the Harlot of Revelation and Jehovah's Witness mock 'communions' and everything in between all becomes equally licit and permissible and worthy of state protection because, according to the Bishops, we all have the liberty to persevere in whatever religious error we happen to be enmeshed in. The religious liberty objection really says nothing about the objective truth or falsity of the religious practice in question; it simply appeals to the fact that the practitioner believes their opinions to be true and that this should be respected. Is entirely subjective."

Referral to US cases is a useful guide considering how similar the wording of our constitutional provisions are relating to the Bill of Rights of the US. Not to mention the close legal tradition that the Philippines shares with the US. Although with one major difference normally not seen by lawyers here: while the concept of Church-State separation is expressly written in our Constitution, the same is nowhere to be found in the US Constitution.

The practical effect of all that, as AZ Aizenman says, is that the anti-contraception camp has to "clear a major legal hurdle: A landmark 1990 decision in a case called Employment Division v. Smith, in which the Supreme Court found that if a law is 'neutral and generally applicable' — meaning that it is not specifically targeted against any religious group — individuals must comply with it even when doing so imposes a burden on their free exercise of religion.

Writing for the majority in that case, Justice Antonin Scalia — a conservative justice known for his strong identification with the Catholic Church — found that to allow otherwise 'would be courting anarchy' by making 'the professed doctrines of religious belief superior to the law of the land and in effect to permit every citizen to become a law unto himself.'

In the last decade, the highest state courts of both New York and California cited the Smith decision in blocking First Amendment challenges to state contraceptive-coverage laws virtually identical to the federal rule.

In both instances, the state courts found that their state’s laws met the 'neutral and generally applicable' standard set out in Smith. And in both cases, the U.S. Supreme Court declined to hear an appeal of the lower court’s decision."

That is why Janet Smith said, in relation to contraception and the HHS Mandate, the "religious-liberty argument isn’t sufficient for two reasons: The Church and the culture do not have the same understanding of religious liberty, and the status of contraception as health care is, in fact, very relevant to the question."

Finally, if the pro-life movement and its lawyers insist in arguing against the RH Law from a religious freedom perspective, it places them in the utterly and ridiculously ironic position of contradicting the Catholic Church. Because, remember, the position of the Church on contraception is (as Fr. Dylan Schrader puts it) "not that Catholics should not contracept ... it is that no one should contracept." Or to put it another way: "Contraception, sterilization, and abortion are always wrong for everybody, regardless of their religious beliefs."

To sum, from the foregoing, it can be seen why the religious freedom argument (if argued exclusively on its own) in relation to contraception has met with substantial difficulty in being accepted in the public square and why it could be a hard sell in court.

************

For those interested, my earlier comments on the matter, made just almost at the start of the RH Law case in the Supreme Court, can be found here. Some of the the legal issues or questions that we expect to be covered at the Supreme Court oral arguments on 23 July for the RH Law case can be found here and here.  

The road to entitlement hell

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

Over the weekend I came across an interesting article, a satire actually, that really hits the spot: “Survey: 94% of Informal Settlers Were Actually Silver-Spoon-Fed Spoiled Brats During Their Childhood Years” (from So, What’s News?; http://sowhatsnews.wordpress.com/). I recommend reading it, if simply as an antidote to all the nonsense written in the name of social justice.

As the article puts it, the squatters (which, I believe, is the more appropriate term) “felt entitled to be given free housing, as well as living allowance and transportation allowance.” Among other things they also felt entitled to:

• “Informal settlers are free to illegally tap the water lines for their consumption. Same goes for electricity.
• During demolition protests, they are entitled to hurt the authorities trying to uphold peace and order because the police have no human rights. Only them.
• The government must provide everything for them, namely: housing, livelihood, education, pocket money, living room showcase, bedroom showcase, possibly a car, wardrobe showcase, full cosmetic makeover from Belo Medical and a jacket. Everything but the kitchen sink; because they said so."

The entire piece would have been really funny if it weren’t for the fact it’s true. Granted, there’s the recent Asian Development Bank report, “The Social Protection Index, Assessing Results for the Asia and the Pacific” (which criticized the Philippines’ low social protection expenditure). But such is incomplete as it only measures what the government doles out without factoring in what our society tolerates or refuses to hold people accountable for (along with the attitude or motivation behind it).

For example, while Singapore indeed allocates a huge portion of its budget on social protection, nevertheless, it will not tolerate squatting or any sort of criminality, with everyone encouraged (“compelled”?) to put in their fair share for Singapore. Contrast that with the Philippines, where the extended family, immediate community, employers and the government are all expected to provide anything on demand but without any concomitant responsibility required of the citizen.

I’m reminded again of New Jersey Governor Chris Christie’s remarks on what he believes is a fundamental problem faced by the US: “We are turning into a paternalistic, entitlement society. That will not only bankrupt us financially, it will bankrupt us morally. Because when the American people believe this is no longer a place where only their willingness to work hard, to act with honor, integrity and ingenuity determines their success in life, then we’ll have a bunch of people sitting on a couch waiting for a government check.”

Unfortunately, as Christie notes, rather than feeling secure about their future, it resulted in lesser optimism among people. For the Philippines, rather than corruption or foreign intervention, it’s this combination of entitlement and paternalistic cultures that’s the source of the nation’s fundamental problems.

A blog, “Get Real Philippines” (http://getrealphilippines.com/blog/, which I highly recommend for its intelligence and, quite frankly, for doing something most columnists nowadays are scared to do: give an independent thought), offered more extensive insights on the foregoing issue. Ilda’s take on the matter (A lot of decent Filipinos are getting fed up with squatters, July 10, 2013) revolved around the entitlement angle, while Benigno (“Bianca Gonzales speaks out on Manila’s squatter infestation!,” July 9, 2013) focused (correctly I believe) on the rule of law.

There’s no dearth of examples on how we’re degrading our people through this entitlement culture. You have jeepney, bus, tricycle drivers, as well as waiters, clerks, laborers, office employees -- all thinking they have the God-given right to do anything they want: “You don’t like the way we do our job? Fine, we’ll abandon it.” And screw duty or the rule of law.

In fact, readers of this column will remember the issue I took against the Kasambahay Law and the likely problems it will bring. Even then I wrote, borrowing words from Christie, “I do not agree when our politicians tell our people: ‘do not bother about wanting to work hard and acting with honor and integrity and ingenuity because we’ll take care of you.’”

And apparently, I’m right. Many middle-class readers and friends (and it’s always the middle class that gets loused up in this country) told me stories about advancing transportation funds for new maids only for them to disappear (along with the money), of dutifully registering their maids with the SSS only for those maids to abandon their employers just because they felt like it. Then there are the accounts of maids having stolen stuff or left their employer thousands of pesos in debt to the phone company, destroyed appliances, broken furniture. All this without the Kasambahay Law (or any of our laws) giving any effective remedy to the honest employer.

Don’t get me wrong: poverty alleviation is a noble objective. But it can’t be solved merely with good intentions. Unfortunately, in the Philippines, the road to hell is not only paved with good intentions, it’s lit, furnished, and gilded with it.

More expected issues in Imbong vs Ochoa

In addition to the areas of discussion that we previously anticipated (correctly, I might add), for the Supreme Court oral arguments in Imbong vs Ochoa (or more popularly known as the RH Law case), here are possible other questions that may be covered for the 23 July 2013 oral arguments. This, it must be emphasized, is on top of the questions in B and C of our 2 July 2013 blog entry - see here - which are still expected to be asked in the next hearing:

On religious freedom

• Petitioners keep insisting in complaining that taxes are being used for contraceptives, how do petitioners prove that their taxes are to be used for contraceptives when such taxes are paid generally and without identifying the purpose for paying such taxes?
• How can petitioners insist in arguing regarding taxes when around 80% of the population, most of whom are contraceptives, support the use of contraceptives?
• Again, so petitioners are saying that if a religion out there is not supportive of military action to defend our country or is against coeducation for our public school, for example, then any such taxpayer can refuse to pay taxes because it goes against his religion?
• If petitioners are against the RH Law because contraception is immoral, then does that mean petitioners are saying the Supreme Court has the mandate to rule on morality for Filipinos?
• Can morality be a judicial issue or can morality be legislated upon? If so, would issues of morality be better dealt with by Congress and not by the Supreme Court?
• If petitioner believes that the Supreme Court has the mandate to rule on morals (and even 'truths'), what particular provision in the Constitution authorizes the Supreme Court to do so?
• But wouldn't the ruling and reasoning by the US Supreme Court in Planned Parenthood demonstrate that no tribunal in a constitutional non-theocratic democracy can rule on moral issues?
• Assuming that the Supreme Court can rule on morality, what particular moral framework do the petitioners suggest? What would be the legal or constitutional provision justifying such suggested moral framework?
• Do petitioners admit that no specific provision in the Constitution allow the Supreme Court to make a judgment on moral issues?
• By suggesting such moral framework, wouldn't petitioners be essentially demanding that the Catholic moral framework be imposed on the rest of Filipinos? Would that not be a violation of Church-State separation? Note that such provision, while not even mentioned in the US Constitution and yet is strictly applied there, should Church-State separation be even more strictly applied in the Philippines considering its express provision in our Constitution?
• Why do petitioners insist that contraception is immoral? note that only Catholics (and specific schools of Islam) say that it is immoral. And if the Supreme Court declares it immoral, wouldn't that be in effect imposing a religious doctrine on others who do not follow the same religion?
• Why do petitioners insist in mentioning natural law? How different is this from Catholic teaching and thus limited only to Catholics?
• Besides, what specific provision can petitioners cite that would authorize the Supreme Court to refer to natural law for its rulings? If petitioners cite Article III, Section 5, then such is a religious right and comes only with exception consequences and applicable only to Catholics.
• If petitioners cite Article VIII, Section 1, 'grave abuse of discretion', do petitioners therefore mean that just because a law is against natural law then such is grave abuse of discretion? Why? Please explain in detail. Because if natural law is merely a Catholic doctrine, then for Congress to make a law that burdens religious freedom, such would not necessarily be a grave abuse of discretion as Congress has the mandate to do that assuming there is a valid State interest involved.
• Why is contraception against natural law? How come NFP is not against natural law? Please explain in detail. Because if petitioners can explain natural law and contraception only by referring to Papal encyclicals or Catholic teaching, wouldn't that mean therefore that natural law is a Catholic teaching and thus falls within religious freedom provisions? Which means that, the notion of the immorality of contraception is applicable only to practicing Catholics (note that even around 80% of Catholics agree to the use of contraception).
• If petitioners explain natural law by referring to God, then what god are petitioners referring to? Does that mean petitioners are expecting the Supreme Court to ignore the rights of non-Christians and even atheists?
• Are there any non-Catholic natural law experts do you know? Are there any non-Catholic natural law experts do you know that agree that contraception is immoral? If petitioners can only mention Catholic natural law experts as being against contraception, then why do petitioners deny that this is just Catholic teaching that is applicable to Catholics?
• In which case, why do petitioners insist in imposing Catholic teaching on others? Don't petitioners respect Church-State separation?
• Do petitioners expect the Supreme Court to declare that only Catholics are right, with every other religion and all non-believers wrong?
• How can the privacy of married Catholic couples be burdened considering that they are free under the RH Law not to use contraceptives and to rely instead on NFP?
• On the other hand, wouldn't the privacy rights of non-married couples or couples who are not Catholics be hampered due to to the fact that they are being restricted in their reproductive health options should the RH Law be overturned?
• Returning to natural law, are petitioners familiar with the case of Planned Parenthood vs Casey? If so, will petitioners agree that the US Supreme Court in that case definitively ruled that it has no constitutional basis to rule on moral issues and that it has no authority (due to the fact that there is no legal provision mandating the US Supreme Court to do so and also due to the rights of citizens to liberty and individual choice) to declare universal moral standards? In effect, do petitioners agree that the US Supreme Court effectively said that natural law plays no part in judicial determinations?
• But didn't the US Supreme Court's ruling in Griswold actually authorize the use of contraceptives precisely because of the right to privacy?
• Do petitioners suggest that contraceptives harm female health? But Congress already took years in conducting public hearings on this matter, involving many medical and scientific experts, and decided otherwise.
• If petitioners suggest that contraceptives harm female health, would the Supreme Court be the improper venue for that as evidence needs to be presented?
• If petitioners suggest that contraceptives harm the economy, would the Supreme Court be the improper venue for that as evidence needs to be presented?
• If petitioners suggest that contraceptives cause promiscuity among the populace, would the Supreme Court be the improper venue for that as evidence needs to be presented?
• Why do petitioners keep declaiming about the 'culture of life' that must be protected when contraception (at least non-hormonal contraceptives) merely prevent new life but do not kill life already existing? Are petitioners saying that even those who are not conceived have legal rights? What legal basis do petitioners have for claiming this?
• Are petitioners claiming that women have no right of choice?
• Are petitioners claiming that those still not conceived have rights over and above that of women?
• Doesn't Congress have the prerogative to ensure that those born would have enough care and resource for them to live decently and with dignity?
• Didn't petitioners reveal during the oral arguments last 9 July that petitioners are not against non-hormonal contraceptives? So why are petitioners now arguing against non-hormonal contraceptives?

Not included here are the issues relating to 'standing' or 'venue' (considering the repeated referral by petitioners on evidence outside that of the provisions in RA 10354), which the Supreme Court may in all likelihood continue to explore.

Still no right to gay marriage

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

After all the euphoria last week regarding the US Supreme Court ruling in United States v. Windsor, otherwise referred to as the Defense of Marriage Act (DOMA) case, two things must be said: the ruling did not create a constitutional right to gay marriage, and five members of the US Supreme Court Hollingsworth v. Perry effectively decided to disregard the will of the people of California (who, by Proposition No. 8, said no to gay marriage).

What the Windsor ruling did say is that if a state already legalized gay marriage (which only around a mere 13 US states do, with around 35 US states maintaining that marriage is exclusively between a man and a woman), then the federal benefits given to traditional marriages must also be given to gay marriages. The US Supreme Court’s ruling, however, took pains to express the fact that it was not creating a constitutional right to gay marriage. The ruling’s rationale focuses ostensibly on state’s rights to choose their own definition of marriage and "equal protection." Which is bizarre considering the US Supreme Court’s refusal (in Hollingsworth) to uphold the will of the people of California, as well as its rather overly stretched and imprecise thinking regarding "equal protection."

A right to same sex marriage certainly does not exist in international law. Contrary to the CNN fixated, the UN Human Rights Committee (in Joslin vs. New Zealand, Communication No. 902/1999), for example, 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.’" Thus, even under ICCR provisions, 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 under the European Convention of Human Rights. This can be seen in Gas and Dubois vs. France, as well as Schalk and Kopf v. Austria. The substantive take-away from both rulings is the fact that there is no international legal obligation for States to recognize homosexual unions.

And neither can such a "right" 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 around 15 authorize same sex marriages. Also, 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.

The ECHR in Gas and Dubois also made a crucial point: in denying 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 Notre Dame Law School’s Richard W. Garnett says: "it is not true that ‘discrimination’ is always or necessarily wrong. xxx ‘Discrimination,’ after all, is just another word for decision-making, for choosing and acting in accord with or with reference to particular criteria."

So, no right to gay marriage exists. But another fact that must be emphasized: in the US, as in the Philippines, there is no ban on homosexual relationships. Any gay couple can live together freely. They are also very much free to join any religion that approves of their relationship. And nothing is stopping homosexuals from entering into contracts governing such relationship, including property arrangements.

The real issue, therefore, is the unreasonable demand by the homosexual advocacy to force their own definition of marriage on absolutely everyone.

Unfortunately, these facts are lost amidst the hype and emotion now substituting rational discussion on the issue. And sometimes, the application of outright malice. Quite noticeable is the obvious brainwashing by the media in favor of gay marriage (see Pew Research Center 2013 report on media bias regarding gay marriage -- http://www.journalism.org/sites/journalism.org/files/EMBARGOED_Same-SexMarriageandNews.pdf).

As Heritage Foundation’s Ryan T. Anderson pointed out ("The Left’s Three Techniques on Marriage Redefinition -- and How to Counter Them," July 5, 2013), gay marriage advocates have "deployed three distinct tactics: First, they’ve been successful at oversimplifying the issue, personalizing it and refusing to engage the complexities of social reality. Second, they’ve implied that the LGBT community speaks in one voice. And third, they’ve demonized their opponents as ‘bigots’ and ‘haters.’"

It is everyone’s duty, therefore, to insist that calm and (more importantly) reason permeate this national conversation on gay "marriage" considering that it could very well set the country’s direction.

Moving on for Philippine pro-life

Considering all the social and moral issues confronting the pro-life movement here in the Philippines and coming off the experiences in the last elections, one would think that pro-lifers would be very eager, to the point of being obsessed, to learn from their mistakes. Apparently not.

Simply put: not many pro-lifers really know what they want. Which leads to another problem: one can't go about achieving something if one does not know what that something is. Yes, many pro-lifers can tell you the formula for moving on with their advocacy: "First, prayer; then, atonement; in the third place-very much “in the third place”-action." (to quote St. Josemaria Escriva)

In love with crisis

But that formula does not mean that we're required to set aside our wits. And for most pro-lifers, it's one crisis management after another: gay marriage now, divorce the next day, implementation of the RH Law after that, pornography if there's time remaining, and then fight the Church bashers during holidays.

The thing with being in constant crisis mode is that it looks exciting, it makes people feel courageous, and - quite frankly - it excuses them from certain necessities like ... oh, thinking. So we lurch from one prayer rally to another, hold a Mass for (insert name of cause here), and then go trolling off to any social media site where something dramatic was posted. In the meantime, they talk amongst each other about Lumen Fidei and how 'tsk tsk' the rest of the country doesn't even know how important Pope Francis' first encyclical is.

In the end, it doesn't achieve anything except to give off the impression that pro-lifers are just a bunch of unthinking, noisy, repressed people. Which is far from the truth. Many pro-lifers are intelligent, sincere, and well meaning. Many still, in their professional lives, know how to get things done. But, still, no self-respecting organization would actually move the way the pro-life movement as a whole goes about things. And no self-respecting organization does. Unfortunately, like spoiled brats, just because they can appeal to a very important or powerful father (how much more powerful can you get than God), pro-lifers actually believe that they don't need to plan, act, and move with the same discipline that secular movements actually impose upon themselves.

Need for goals and objectives

A secular organization would lay down goals and objectives first: long term and short. And it actually spends time wording precisely what the overall goal and objectives are. "To defend the faith" is not an objective, it's a bumper sticker. The same with "To spread the faith". A goal is "a computer in every home and Microsoft in every computer. Or: "make disciples of all nations. Baptize them in the name of the Father and of the Son and of the Holy Spirit." An objective is: "By 2020 we shall have so and so number of pro-life congressmen and senators." Or: "By 2016 we shall have pro-life offices in every region." Objectives are measurable, indicators if something has been achieved or on the way of being achieved, within a schedule.

Another thing about objectives is that they must be doable. One of the most ridiculously impossible objectives I've heard in a long, long while was during the last elections and went something like this: "To educate all Filipino voters so that they can individually discern properly who to vote for come election day, refusing vote buying, voting by popularity, or voting by mere emotion, and so without us giving them names they can discern on their own that they must vote for pro-life candidates, thus overturning years and years and generation after generation of money and dynastic politics, all such to be done in a matter of three months".

Personnel is policy

Another thing that a secular organization would do is to acquire and then properly allocate its resources to achieve the objectives. Resources for these things normally come in two: people and money. Pro-lifers are proud that they move through volunteers. Which is well and good. But this must be propped up by a dedicated and paid core of individuals. The problem with people who work for free is that the quality they give shows it. And the problem with volunteers is that their work is what they are willing to volunteer: if they have time for it in between work, if they can show up in between their activities, if they feel well, if the pro-life people are making them feel special enough.

An important aspect of this is getting the right people for the right function. A secular organization would get the best managers, media, marketing, finance people, lawyers, strategists, to do specific functions. Thus, media functions are assigned to the best communications people and one defers to the best lawyers to fight legal battles. The pro-RH group did this marvelously: their best advertising people crafted their message, while Philippine Bar topnotchers organized their legal offense. A dysfunctional organization, however, would have it the other way around.

Hence, the pro-life movement: where seniority is infallible, family connection matters more than individual merit, and for the younger batch it's always the dullest and dimmest (thus, the most non-threatening to fragile egos or of the established pecking order) who are brought up. In meeting after meeting, I have seen incredibly smart young people almost brought to tears at the organizational inanity being supported by the rest of the group just because it was raised by the most inoffensive dimwit there. And why would you appoint spokesmen to appear before radio and TV who, granted they are so soft-spoken and liked by the pro-life leaders, actually have the effect of annoying the hell out of (or rather into) those yet to be sold on the pro-life movement?

Money, money, money

Then there is money. One can't run an organization or movement without it: you need it to attract and keep committed professionals, to buy materials, to acquire, keep and spread information, to buy for food for meetings (which, in the Philippines, is a must). Transportation costs must be shouldered, computers need to be upgraded. Pro-lifers like to say that have no money, essentially to convey the impression that their motives are pure and they are moved by volunteerism. Which is crazy.

If one works for and saves money so that our children get educated, then shouldn't we work for and save money to help save their souls? If a company can acquire funding for toothpaste or pipes, or an NGO can acquire money to save monkeys or some stupid bird, then why can't the pro-life movement get funding for something we know to be infinitely more important?

The fact that the pro-RH movement has huge funds while the pro-life doesn't is not something to be proud of. It's something to be corrected. 

Sticking to the plan

Then, when that is done, a secular organization plans. It sets metrics, timelines, accountability. Which leads to another thing: the discipline to achieve the objectives. No plan is executed flawlessly. Obstacles will come, the unexpected always crops up. But that, paradoxically, is the reason one plans. And that is also why one gets the best people: elitist as it may sound, one needs the best. Precisely because in achieving objectives, people don't realize how much improvisation quickly needs to be done. And for some reason, one needs brains to improvise. But that's the way it is. Even with all that planning. And you need the right people with the single-minded determination and mentality to clearly see the objectives, who can clearly see it despite all the distractions, noise, and criticism. Notice I used the word "clearly" twice because it's important. Pro-lifers usually mistake movement for achievement. Not so. It is to move with a defined purpose that would lead to achieving something.

A person who spurs and displays all that activity and sound so as to have a "better Philippines" and "brighter tomorrow" is somebody not seeing things clearly. A group of people that moves just so they can feel better about themselves are not seeing things clearly. People whose personalities don't allow themselves to engage in debate and yet criticize as 'uncharitable' those who do publicly defend the faith, when the latter merely resorted to facts and reason, are not thinking clearly. Pro-lifers who can't help but condemn people to hell and arrogantly label anybody who does not agree with them as sinners and perverts, when what they should be doing is to encourage them to get back into the Church, are not thinking clearly. Thus, the need for discipline, focus, and the clear mindedness to engage only in activities that is productive and gets us closer to reaching the objectives.

And also to achieve those objectives in accordance with the principles of the organization. Thus, there has got to be something wrong if the organization founded on certain virtues like charity, temperance, diligence, etc., engages in hating non-believers, indulges in flaky or sloppy thinking, or does things in a disorderly way.

Hence, the need for constant self-examination: are targets being achieved, schedules met, were performance lags corrected? Any effective organization does this to ensure competence, efficiency, and accountability. Unless, of course, you're one of those dimwits who believe that to demand accountability is to be uncharitable. The self-examination should extend to the personal level and, coincidentally enough, our faith provides us with a "mechanism" to do just that: the sacrament of reconciliation. Otherwise called confession. Everybody needs to do this, including this writer. Regularly. Particularly for people who are advocating in the pro-life movement. For obvious reasons, specially pro-lifers.

It's doable because it's been done

The point of all this is: If you're going to do something, do it right. The cliche is wrong: hell is not only paved with good intentions, it's lit, furnished, and gilded with it. For anybody who actually read the New Testament would see that Jesus, who is God, could have done anything with a flick of the finger. But no. Again, He went through the trouble to give himself up as a model: He set goals (prepare the way, then later 'make disciples of all nations,' etc), gave specific instructions (carry no sandals, no satchel, say peace to the household they enter, etc), allocated resources and planned (get a tied up donkey never ridden before, get a furnished upstairs room, etc., as well as giving parables about planning, such as about the man who built a tower without ensuring adequate resources, etc.), and improvised when things didn't go as planned (see Lk 9:51-56).

Most importantly, He hired and appointed the most appropriate personnel for specific positions. Nothing was stopping Him from hiring or promoting in a manner similar to Philippine practices: He could have engaged in nepotism by elevating his cousin James or resorted to favoritism by promoting his favorite John over the others, or gave in to pakikisama by acceding to James' and John's mother's request to give them special positions. But, no. He appointed the fearless and also quite tempestuous Peter to be Pope and the intellectually agile outsider Paul to be His number one spokesman. He goaded, praised, mentored, criticized, rebuked his people to stick to His plan and keep their eye on the goal. And, not giving way to distractions or flakiness, with determination and great sacrifice, achieved the objective He laid out.

Inasmuch as we Catholics are called to imitate Christ, the pro-life movement should do no less.

Natural law as law standard

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

A topic I’ve oft been asked is on the proper role of natural law in our constitutional system. As it is, one dictum goes “that Congress must legislate in accordance with natural law but the Supreme Court must rule in accordance with the Constitution”. However, the reality and the way our present Constitution is written provide significant deviation from that. 

It must be emphasized that our constitutional system, even prior to the 1987 Constitution, allows our Supreme Court to overturn laws not merely on the basis that the Congress did not comply with constitutional requirements (i.e., “procedural due process”) but also to inquire as to the inherent “justness” of a law (i.e., “substantive due process”). Due to our experience with martial law in the 1970’s, where our Supreme Court had to shy away from ruling on the measures taken by then president Ferdinand Marcos (as almost every act he did, whether morally questionable or not, was done with legal precision), the present Constitution had a new provision written into it: Article VIII, Section 1. Thus, now expressly, the Supreme Court has the power to determine if the acts of Congress (or the president’s) were done with “grave abuse of discretion amounting to lack of or excess of jurisdiction.”

Accordingly, the Supreme Court has the authority to overturn a law enacted by Congress if the same was “"capricious or whimsical exercise of judgment” or if such was enacted in an “arbitrary and despotic manner by reason of passion and hostility”. The latter indicates a law that is unfair, unjust, or contrary to reason, motivated as it was, for example, by mere “passion.”

Taking that into consideration, is the Supreme Court mandated to use natural law as a standard (alongside and even beyond that of the Constitution) with which to view Congressional enactments? The answer is yes. For two reasons. One is that because natural law is: “an objective standard of right and wrong derived from the use of right reason”. If a law be contrary to natural law, it goes against reason, and an irrational law logically would be an act of “grave abuse of discretion amounting to lack of or excess of jurisdiction.”

But there’s another and more simple reason: because the Supreme Court itself said so.

This (expressly or impliedly, directly or in allusion to) in ruling after ruling by the Supreme Court, which in a partial listing alone would include: People v. Asas (recognizing the right against forced confessions as part of the natural law); People v. Agbot (recognizing that the natural law forbids killing); Mobile Oil Philippines, Inc. v. Diocares (the element of promise as the basis of contracts as an influence of natural law); Manila Memorial Park Cemetery v. Court of Appeals (estoppel as part of natural law); Yu Con v. Ipil (on natural law in maritime law); In Re Testate Estate of Narciso Padilla (on the prohibition of unjust enrichment in the natural law); Moncado v. El Tribunal del Pueblo y Juan M. Ladaw (statement on the innate human sense of justice); Laurel v. Misa (on the natural law and positive law prohibition of wars of aggression); Ansay v. The Board of Directors of the National Development Company (on natural obligations); Philippine Commercial and Industrial Bank v. NAMAWU-MIF (on the natural law basis of certain labor code provisions); De La Llana v. Alba (on the role of natural law in judicial decisions); Marquino v. Intermediate Appellate Court (on the natural law basis of property rights); Uniwide Sales Realty and Resources Corporation v. Titan-Ikeda Construction and Development Corporation (on natural obligations). 

Then there are specific cases, where aside from referring to a “higher law” or “rule of reason”, the Supreme Court also touched on the nature of “human dignity”: Estrada v. Escritor; Blooming Mills Employment Organization v. Philippine Blooming Mills Co., Inc; Floresca vs. Philex Mining Corp.; Allado v. Diokno; Republic vs Sandiganbayan. 

All the foregoing must be read alongside Article II, Section 2 of the Constitution, incorporating international law (which has natural law as basis, as even any law student knows) into our constitutional system. Examples of this: the 1948 UN Declaration on Human Rights; the 1966 International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; international law doctrines of jus cogens (as well as erga omnes); and the Nuremberg War Crimes Trials.

It must be emphasized that when the Supreme Court invokes natural law, it wasn’t referring to any theological or religious concept but rather an acknowledgement that there are indeed objective standards. Even the US Supreme Court referred to natural law.

As revered legal expert Jorge Coquia explains: “One standard that can serve as a guide for courts in resolving concrete cases involving conflicts of the fundamental freedoms of speech, press, property and religion is Natural Law. xxx Positive law needs the enduring critic provided by Natural Law. It must be confronted by objective justice.”

Issues guide in Imbong vs Ochoa

Wth the oral arguments on Imbong vs Ochoa, which is how the consolidated petitions against RA 10354 (or the RH Law) will be known,  just around the corner, what are the issues or questions that are expected or should be expected to be tackled by the petitioners’ lawyers that day? Admirably, the pro-RH Law side is pitting the best legal minds available to argue its position, what with a couple of Bar topnotchers and expert constitutionalists crafting their legal offense. As of now, there are two main areas that the Supreme Court, with the acquiescence of most of the petitioners lawyers, decided should be covered in that oral arguments: right to life and right to religious freedom.

Here, therefore, is a guide (particularly for law students and laymen) to the breadth and complexity of the likely queries for this quite controversial case:

A. Right to Life

• Why is right to life being considered violated when the RH Law deals with contraception?
• Why are abortifacients being alleged when such is not being endorsed or supported by the RH Law?
• Why are abortifacients being alleged when the RH Law does not even mention abortifacients and in fact expressly speaks against it?
• Why are abortifacients being alleged when the RH Law does not even name specific medicines or medical supplies?
• Why make the RH Law unconstitutional when if there are any abortifacients sold or imported in the Philippines they will actually be considered in violation of the RH Law?
• Why is right to life being violated when, if Catholics consider life begins at conception, then no life has been threatened at all from the way the RH Law has been drafted?
• How is the foregoing different from a sterile and married couple?
• How is the foregoing different from a fertile and married couple who decided not to have children?
• Assuming there is inclusion of “day after pills”, what is the definition of conception?
• Why is conception different from implantation?
• Why should Catholics impose their belief that life begins at conception when international medical organizations and other reputable international organizations consider that life begins at a different point?
• Are petitioners saying that the US ruling in the case of Roe vs Wade to be wrong? On what grounds? What about Planned Parenthood vs Casey?
• Assuming that life begins at conception, how can that be reconciled with the fact that our own laws do not give rights to such until such foetuses have been born?
• How does petitioners’ position square with the doctrine of unenumerated rights?
• How does petitioners’ position square with the concept of personal dominion, without resorting to religious arguments?
• If foetuses do not have rights equivalent to persons (as defined by law), then what is the legal basis for making such foetuses have the right to override the rights of women, including the right to privacy, to decide with regard to their reproductive rights?
• Why should a foetus, which does not have the same rights as a “person”, not be allowed to override State interest (assuming such can be proved)?
• In Planned Parenthood vs Casey, the US Supreme Court indicated that “the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What are petitioners’ basis for depriving people of such right?
• Do petitioners’ deny that women have a right to reproductive health?
• Do petitioners’ deny that there is an international human right to reproductive health? What is their basis considering the numerous international agreements that mention reproductive health rights?
• Petitioners argue that our Constitution is pro-life, what is the basis for that? Are petitioners saying that pro-life is synonymous with pro-family?
• Does the wording of the ConCom deliberations override the express wording of our Constitution and the authority of Congress? How is pro-family in contradiction to the intent of the RH Law to give families the choices needed for them to do what is best for their family?
• Why do the provisions of the 1973 Constitution regarding population development or control have any relevance to the RH Law, which has been stated to be not about population control but about reproductive health?

B. Religious freedom

• Why are petitioners resorting to religious freedom arguments when the RH Law does not force them to use contraceptives?
• Do petitioners deny that the State can override religious freedom if such be in accordance with State interests, with People vs Lagman and Zosa as example?
• Where is evidence regarding sincerity of religious belief considering that surveys show that most Catholics, here and abroad, show acceptance of contraceptives?
• Where is evidence regarding sincerity of religious belief when surveys in England, Wales, and Australia show that a significant number of priests are in favor of contraception?
• Where is evidence regarding sincerity of religious belief when a number of Filipino bishops and priests are in favor of contraception or do not judge contraception to be a grave sin?
• What is the evidence on contraception being a doctrine of the Catholic Church?
• Where does it say that the Catholic teaching on contraception is infallible?
• If it is not infallible, then why should Catholics strictly follow such teaching?
• The Catechism of the Catholic Church mentions the proscription on contraception in relation to married couples. So why are petitioners insisting that contraception be disallowed or is immoral for all Catholics or for everyone?
• How do petitioners explain the various different opinions by Catholic theologians and even lawyers regarding the actual teaching on contraception?
• How can petitioners explain the fact that most religions and churches, including most if not all other Christian churches, accept contraception?
• How do petitioners explain the fact that majority of the members of a commission organized by Pope John XXIII and expanded by Pope Paul VI actually voted in favor of contraception?
• Where is contraception mentioned in the Bible? 
• What exactly again is the burden being imposed on Catholics considering that: a) most Catholics agree to contraception, and b) the RH Law does not force people to use contraceptives?
• What positive or negative act is being imposed on Catholics that would constitute a burden on their religious rights?
• Are petitioners saying that the government cannot initiate or carry out any measure if it offends the religious feelings of anybody?
• What if a Catholic out there says that he does not like war, can that Catholic be allowed not to support the country during war, not pay taxes, not do military duties, not to provide service to the government?
• What if a religion out there does not like bridges or buildings or think the internet is a sin? Does that mean that person is now allowed not to pay taxes or otherwise support the State?
• Does the Catholic Church go against personal freedom? Of conscience?
• In Planned Parenthood vs Casey, the US Supreme Court indicated that “the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What are petitioners’ basis for depriving people of such right?
• Do petitioners believe that Filipinos have no right to their own bodies?
• Do petitioners believe that Filipinos have no right to privacy, which is the point of the US Supreme Court case of Griswold, as well as Eisenstadt, affirming the right to contraception?
• Do petitioners realize that by arguing on the basis of religious freedom, they are essentially asking only for an exemption from the law?
• If petitioners are asking for an exemption from the application of the RH Law on the basis of religious freedom, how do they suggest that such exemption be made?
• What about the fact that surveys show most Catholics actually agree with the use of contraceptives? How then should such exemption be made?
• Do petitioners know that in Ebranilag and even Escritor cases, where such exemption was granted, yet it came with certain conditions (e.g., in Ebranilag, though they were not forced to salute the flag, yet the students were still required to stand in attention during flag ceremonies), what conditions do petitioners suggest that would merit such an exemption being considered?
• Again, what is the actual burden to Catholics if they are not forced by the RH Law to use contraceptives? In which case, how then can such an exemption be made?
• Petitioners argue that Catholic medical workers and government employees are forced to act against their faith? How is that exactly?
• If petitioners argue that Catholic health workers are forced to refer patients to another health worker that is willing to issue contraceptives, how does that violate their faith? Are petitioners saying that Catholics can predict the exact will and action of other health workers?
• Considering the separability clause of the RH Law, would petitioners agree to allowing the constitutionality of the RH Law if the provisions on health workers were cut off? Why? Or why not?
• Wouldn’t poverty be adequate State interest for Congress to enact the RH Law? If not, then what can constitute adequate State interest?
• The RH Law was deliberated by Congress over years and it finally made a conclusion, after numerous hearings, that the evidence they heard from both sides (which includes medical, scientific, economic, social, and other such data and facts) justified the enactment of the RH Law. What right do petitioners now say to demand that the law be rendered unconstitutional?
• Considering that in the last elections most of the Congressmen and Senators who supported the RH Law and ran for reelection were reelected, where then is the basis for saying grave abuse of discretion if the people agreed to the actions made by their elected representatives?
• Several international instruments such as Tehran Proclamation, Cairo Programme, Beijing Platform, Yogyakarta Principles, as well as the CEDAW, all indicate an international law right to reproductive health. Are petitioners saying that we should ignore such, in violation of Article II, Section 2 of our Constitution?
• Do Petitioners argue that it is acceptable for Filipinos to be deprived of their right of choice, considering that all the RH Law does is to provide Filipinos with an array or “menu” of options with regard to reproductive health?
• Do petitioners deny that the RH Law actually mentions and includes NFP or natural family planning as one of the choices? Are petitioners also against NFP?
• If petitioners are not against NFP, then why are they against contraception when the effects are the same?
• Are petitioners arguing that only fertile couples capable of producing children can marry? If not, what is the difference between a married fertile couple resorting to contraception and a married sterile couple?
• If NFP is acceptable to petitioners, then why are Catholic government health workers considered coerced to act against their faith when they are not prohibited from speaking about the merits of NFP?
• Are Catholics prohibited under the RH Law from resorting to NFP?
• Are petitioners saying that the RH Law fails the ‘strict scrutiny test’?
• How can the RH Law be discriminatory to Catholics when the same is to be applied ‘neutrally and generally’? Note that if a measure is applicable in such a manner, then legal doctrine says that such measure can override religious rights.
• How can petitioners argue that the RH Law is unconstitutional when it is not ‘intrusive’ to the point of discriminating against Catholics: a) it does not force Catholics to use contraceptives, and b) Catholics are free under the RH Law to use NFP?
• Are petitioners arguing that contraceptives are to be not made available to everyone because the Catholic Church says so? If not, so do petitioners agree that non-Catholics and even Catholics who do not agree with the Catholic Church are entitled to contraceptives?
• What basis would petitioners have for arguing that contraceptives is immoral and improper for every one? Is that not a violation of the pluralistic society that the Philippines is? Are petitioners saying that a theocratic society is needed in the Philippines?
• What gives the Catholic Church the right to impose their beliefs on everyone else? Does that not violate personal freedom enshrined in our Constitution?
• Do petitioners not understand the concept of Church and State separation enshrined in our Constitution? That such a provision is not found in the US Constitution (which is limited merely to the non-establisment clause and free exercise clause) and yet is expressly written in ours, thus emphasizing that Philippines believes that the Church to not meddle in matters of State or at the very least the dominance of the State interests over religious rights?
• If petitioners are saying that contraceptives are immoral and yet legally available, then why don’t they consider the fact that Congress to be in ‘grave abuse of discretion’ for not making legislation banning contraceptives?
• If contraceptives are immoral for everybody and not only for Catholics (on a still yet to be determined rationale or basis as to why it is immoral for everybody), then why not make contraceptives illegal?
• If Catholic petitioners believe that contraception is immoral (not only for themselves but for everyone), then is Congress or our legal system, by allowing contraceptives to be legal, currently discriminating against their religious rights?
• Having said that, where is contraception mentioned in the Qu'ran? For Muslim petitioners, considering that Muslims constitute less than 10% of the population, is it their position that they be merely be held exempt from the application of the RH Law?
• Or is it the position of Muslim petitioners that their beliefs be imposed on the rest of the population who seem to agree to contraception? On what basis?

C. Other areas:

• Are petitioners arguing that the local government provisions (as well as the provisions on local autonomy) of the Constitution are self-executory? Are petitioners saying that Congress does not have the authority to carry out enactments that according to its judgment meet and carry out the local government provisions of the Constitution?
• Are Muslim petitioners saying that the Congress of the Republic has no authority to legislate relating to the ARMM?
• How can the RH Law violate local government rights when most of the Filipino people according to surveys are in favor of contraception and thus should support local governments in addressing the desire for contraception of most of the Filipino people?
• How can Catholics right to speech be violated when a) speech can be regulated in accordance with State interests, and b) Catholic government health workers are free to espouse or proclaim the merits of NFP?
• Do petitioners deny that the goals of the RH Law are laudable? If not, how can petitioners say that Catholics are forced to undergo involuntary servitude to serve the laudable goals of the RH Law? How different is this from lawyers being asked by the courts to do pro bono work or for anybody to render compulsory military service in accordance with State interests?

Whatever the outcome of this case, it is clear nevertheless that the ruling (and intellectual legal thought) that will come out of it will steer the direction of this country for years to come.