23.6.14

UA&P Law: First Class

my Trade Tripper column in the recent weekend issue of BusinessWorld:

On June 16, I did something I’ve done ever since I became a lawyer: walked into a classroom to begin the semester. It’s a routine that rarely varies. Everybody stands for a short silent prayer, then “I’m Jemy and the subject is Philosophy of Law (or Public International Law),” and classes begin. Which was exactly the thing I did last Monday. Except this time it felt different. Probably because it’s not every day one opens the very first school year of the country’s newest law school.

The University of Asia and the Pacific (UA&P) School of Law and Governance finally held classes for its Juris Doctor law program -- with 31 brave students who’d rather break new ground than do ordinary. They come from a variety of fields: from political economy to business, film-making to medicine.

Before launching into the intricacies of the law, I told the students: “As you will find out, not only are you the ‘first class,’ you -- this day, this moment -- are also the culmination of 50 years of dreaming, planning and praying. As such, you, like your teachers, have the responsibility to be who this School is meant for: cultured, ethical, patriotic, professional lawyers and leaders of our society.”

They were reminded that this School will be different from other law schools to its very core: they are to treat one another as comrades; they are not (like other law students) to hide notes from each other or intentionally misplace library books, to never improperly approach (“gapang”) faculty for better grades. They are also to meet the pressures of law studies with restraint. In short: no dramas.

And the most unsettling for many that previously studied or are currently studying law: there is to be no shouting, cursing or vulgarities. This is a rule that extends even to the teachers. Everyone is to act, talk and dress like the professionals they’re meant to be.

This is not to say that the students will not be toughened up for the profession they seek to enter. The monstrous amount of reading, the relentless questioning from the teachers, and the very nature of law study itself will see to that.

And indeed they need to be tough. Aside from the many ethical and competitive challenges that lawyers today face, the law profession itself inevitably confronts a fundamental shift.

As John O. McGinnis and Russell G. Pearce (in their 2014 paper “The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers In the Delivery of Legal Services”) declares: “Machines are coming to disrupt the legal profession and that bar regulation cannot stop them. Machine intelligence is not a one-time event that lawyers will have to accommodate. Instead, it is an accelerating force that will invade an ever-larger territory and exercise a more firm dominion over this larger area.” In the areas of “discovery, legal search, document generation, brief generation, and prediction of case outcomes,” lawyers will be edged out by technology.

UA&P presciently foresaw such changes. As such, its law graduates (more than mere court technicians) should be capable of researching, planning and strategizing for or heading organizations of whatever nature (public or private). As Columbia Law School Dean David Schizer, in an interview with the Financial Times, points out: “You want the people who run the organization to think like lawyers; and you want the lawyers to think like people who run the organization.” This, he argues, “should inform how the law is taught because graduates often end up not as practicing lawyers but running businesses.”

One way UA&P is doing that is by training its students not only in the technicalities of the law but doing so within the context of a truly liberal education. In other words, to train our future lawyers how to think critically.

Unfortunately, “critical thinking” for many schools (and media) today means automatically opposing Church doctrine, the traditional family, traditional marriage, to be anti-American (or “anti” something), and to reject the idea of a strong Philippine republic.

But a true liberal education, as Robert George demonstrates (in his essay “Academic Freedom and the Liberal Arts”), “assumes, to be sure, that there are right answers to great moral and existential questions. It is the enemy, not the friend, of moral relativism. But liberal arts teaching is not fundamentally about telling students what the right answers are -- even when we are justifiably confident that we have the right answers. It is about considering arguments and counterarguments, and examining competing points of view.”

Theodore Roosevelt once said: “To educate a man in mind and not in morals is to educate a menace to society.”

Regrettably, law schools past have produced such menaces to our society, many disguised as the “socially aware” self-righteous kind. It is our hope that the UA&P School of Law and Governance will be different from them, producing lawyers truly worthy of the “noble profession.”

18.6.14

Science, philosophy, and the question of life

my Trade Tripper column in the recent weekend issue of BusinessWorld:

One of the biggest frustrations I have with the Supreme Court ruling on the Reproductive Health (RH) Law was not that RA 10354 was upheld. Rather, it’s the irrational celebration by pro-lifers due to their belief that the Court affirmed the idea that “life begins at conception.” Irrational because the question of when life begins was never really an issue. RA 10354 itself, as noted by the Court in its ruling, “clearly mandates that protection be afforded from the moment of fertilization” and “that abortion is a crime.” All the while, the real and true issue of contraception was forgotten.

In any event, the implications of the RH Law ruling is for another article to tackle. Instead, let’s focus on the idea that life supposedly begins at conception. The argument usually given to support that position is that science (rather than religion) provided the objective and settled “fact,” hence concluding the debate.

To quote law professor Robert George (taken from his remarks before the American Political Science Association Convention): “A human being is conceived when a human sperm containing 23 chromosomes fuses with a human egg also containing 23 chromosomes (albeit of a different kind), producing a single-cell human zygote containing, in the normal case, 46 chromosomes that are mixed differently from the 46 chromosomes as found in the mother or father. Unlike the gametes (that is, the sperm and egg), the zygote is genetically unique and distinct from its parents. Biologically, it is a separate organism.”

From this, anybody can now logically conclude, as Mr. George does, that: “The scientific evidence establishes the fact that each of us was, from conception, a human being. Science, not religion, vindicates this crucial premise of the pro-life claim. From it, there is no avoiding the conclusion that deliberate feticide is a form of homicide.”

But if one looks closely at the matter, science did not declare the fetus’ humanity. And not even Mr. George said so (note he says that science merely “vindicates” the pro-life “premise”). The reason is that science could only describe characteristics. But to determine what those characteristics in total make up, one has to rely on metaphysics.

Or to put it another way: it is philosophy that tells us what a human being is and then science merely comes in to tell us if the conditions set by philosophy have been met.

As Fr. Cecilio Magsino (a philosophy expert and my Philosophy of Law co-lecturer at the University of Asia and the Pacific School of Law and Governance) once wrote in his blog: “... proving that human life begins at fertilization falls outside the scope of science. What science can do is to provide empirical evidence and elements to aid reason so as to arrive at the conclusion that life begins at fertilization. But this conclusion is itself a philosophical one. The reasoning behind it is quite simple: If we say that Peter is the same person we saw today and yesterday, we can say he was the same person the day before and so forth all the way until the moment he was conceived. He would not become a person if he was not one the moment his life began.”

Philosophy professor Mathew Lu affirms that “science can tell us when life begins, provided that we already know what to look for. Empirical biology alone cannot tell us what that is. Once we establish a metaphysical account of life, then empirical embryology can tell us whether the relevant conditions are met.”

Indeed. Science can’t “actually tell us when life begins. In fact, determining which criteria are the right criteria for ascertaining whether a living thing exists is not an empirical question at all. Instead, one’s answer to this question will turn on how one understands the nature of a living thing -- i.e., on one’s metaphysics of life. In the final analysis, questions of existence are not, and cannot be, ‘scientific’ questions, simply because they are not what empirical science is about.”

So what’s the point? Because contrary to what most involved in political or policy debates are concerned, while science may indeed be “objective” and arguably “neutral,” it has limits (as was demonstrated above). Instead, most of the really important issues that need to be confronted: poverty and social justice, same-sex marriage and divorce, euthanasia, stem cells and embryology -- all of these can only be addressed through a fundamental understanding of philosophy.

Fr. Magsino puts it best: “Developed countries have risen to that status by dint of hard work, justice, law and order, truth and other values their culture holds dear. The way a nation acts depends on the way its people think: it depends on their philosophy. Man acts based on what he knows. To act well, a man needs a good philosophy.”

That’s a truth that our Supreme Court, Congress, and the Executive Branch still need to learn.

16.6.14

June 16, UA&P Law

My remarks opening the first class of the first day of the first ever school-year for the first batch of students of the Juris Doctor Law Program of the UA&P School of Law and Governance:

"It was Theodore Roosevelt who said that 'To educate a man in mind and not in morals is to educate a menace to society.'

As you will find out, not only are you the 'first class', you - this day, this moment - are also the culmination of 50 years of dreaming, planning, and praying. As such, you, like your teachers, have the responsibility to be who this School is meant for: cultured, ethical, patriotic, professional lawyers and leaders of our society.

And with that in mind, I welcome you to the University of Asia and the Pacific School of Law and Governance."

9.6.14

All that's left for the Bangsamoro is to declare independence

is my Trade Tripper column in the recent weekend issue of BusinessWorld:

I was recently invited to a roundtable discussion of the issues surrounding the Bangsamoro Framework Agreement, organized by the Center for Research and Communication, the Philippine Ambassadors’ Foundation Inc., and the Philippine Council for Foreign Relations. The University of Asia and the Pacific’s new School of Law and Governance pitched in to help as well.

Not that the event needed any help. The speakers had decades of foreign policy experience and know-how: Ambassadors Jose Romero (who also served as host), Lauro Baja, Willy Gaa, Jose Zaldarriaga, Benjamin Domingo, Rosalinda Tirona, and Representative Celso Lobregat all gave incredibly frank, commonsensical yet profound inputs.

Having said that, none of what they said made me revise my appreciation of what the March 27 Comprehensive Agreement on the Bangsamoro is: either a well-intentioned mistake or a sell-out.

The agreement imposes on Filipinos a peace with conditions that do not require conformity to our Constitution. It is a peace that demands we agree to the notion of certain “hurts” allegedly inflicted by our Republic. This is to forget that the Muslims who wanted this Bangsamoro have freely participated in the democratic process and thus share responsibility for any development (or lack thereof) in this country.

That the Bangsamoro is geared towards statehood is palpable. One sees that in Article I.5 of the Framework Agreement on the Bangsamoro: the Bangsamoro getting their wish that their continued insistence of the quite discredited (under international law) “First Nation” argument be acknowledged in an official instrument.

And as I keep pointing out, all four elements of a State have been granted to the Bangsamoro with the complicity of our government.

That it has the elements of “people” and “government” are seen from the provisions of Arts. 1.1, I.2 and 1.5 of the Framework Agreement.

That it has the element of “territory” are seen from the provisions of Article I, as well as Article V, particularly Article V.1.

That the fourth and final element is also already acquired by the Bangsamoro can be seen from the provisions of the Framework Agreement and the Power Sharing Agreement, whereby the Bangsamoro has “the power to enter into economic agreements.”

The Bangsamoro has been granted all the powers of a State: police powers, taxation and eminent domain. It even has its own executive, legislative and judicial branches of government. At this point, for the Philippines to refuse “recognition” is inutile. The fact that it’s provided for under the agreements that the Bangsamoro and the Philippine government has an “asymmetric” relationship means nothing.

Thus, all the Bangsamoro now needs to do is declare that it is a new State. No recognition is required from other States (as recognition is not an element for statehood). And even then, at least for political reasons, it is not farfetched to believe that the countries thanked in the “acknowledgement” portion of the agreement would readily give that recognition.

Rep. Lobregat was quite correct in pointing out that the government did not even bother putting a deadline for the decommissioning of firearms of the Moro Islamic Liberation Front (MILF). This would serve the MILF in good stead should it decide to go ahead and secede. Furthermore, as he again correctly pointed out (and which I have repeatedly written in this column as well), not once under the agreement do we see the Bangsamoro subject to the Constitution.

The argument that people should not worry as the planned Basic Law could fix the infirmities is inane. For two reasons: the Basic Law cannot amend the express provisions of the agreement, and the Basic Law is only applicable to those who admit themselves Filipinos and subject to the Constitution.

Some argue that the remedy is for the agreement to be declared unconstitutional. I hope they’re right. But it can also be argued that a declaration of unconstitutionality is futile at this point.

The fact is, the government, by agreeing to terms such as “armed conflict,” “self-governance,” “combatants,” the “justness” and “legitimacy” of the “cause of the Bangsamoro,” and the unwitting use of the term “self-determination” (which technically under international law means “secession”), as well as the participation of other states such as Malaysia in the process has arguably elevated the agreement to the level of an international instrument. And it is in the nature of international agreements that they are not to be thwarted by local laws (including the Constitution).

Finally, I notice that advocates for the Bangsamoro keep using the phrase “self-determination” alongside the word “freedom.” Freedom from what? It would be interesting to know if our negotiators even bothered confronting that one significant detail.

4.6.14

Picketty's predicament

my Trade Tripper column in the recent weekend issue of BusinessWorld:

Rarely would an economics book full of numbers and graphs become the center of a global zealous debate among non-economists. But that is what 43-year-old Thomas Picketty’s did. The left’s rock star ever since his 2013 tome came out, Dr. Picketty however now finds himself forced to defend his numbers.

Trouble started when the Financial Times’ Chris Giles (“Piketty findings undercut by errors,” May 23) alleged that Dr. Picketty’s book “contain a series of errors that skew his findings. The FTfound mistakes and unexplained entries in his spreadsheets, similar to those that last year undermined the work on public debt and growth of Carmen Reinhart and Kenneth Rogoff. The central theme of Prof. Piketty’s work is that wealth inequalities are heading back up to levels last seen before the first world war. The investigation undercuts this claim, indicating there is little evidence in Prof. Piketty’s original sources to bear out the thesis that an increasing share of total wealth is held by the richest few.”

As example, Mr. Giles claimed that “the European numbers do not show any tendency towards rising wealth inequality after 1970. An independent specialist in measuring inequality shared the FT’s concerns.”

Dr. Picketty was quick to reply. As reported by The Guardian (May 26): “the economist said: ‘The FT is being ridiculous because all of its contemporaries recognise that the biggest fortunes have grown faster.’ While the available data was imperfect, it did not undermine his central argument about widening inequality, he said. ‘Where the Financial Times is being dishonest is to suggest that this changes things in the conclusions I make, when in fact it changes nothing. More recent studies only support my conclusions, by using different sources.’”

What makes the present allegations interesting is that it was actually sped up by Dr. Picketty himself. Unlike the abovementioned Reinhart and Rogoff incident, the present dispute over Capital happened as it did because Dr. Picketty admirably decided to put all his data online for everyone to examine.

As quick as Dr. Picketty’s response ws, the FT was even quicker (“Big questions hang over Piketty’s work,” Financial Times, May 26): “Data on the distribution of wealth are notoriously unreliable, so any comparisons with more than 100 years ago must also be looked at with scepticism. Even if Prof. Piketty’s figures were flawless -- something which he too accepts is impossible -- wealth inequalities would still be much lower in the early 20th century. Modern America and Europe are nothing like Downton Abbey.”

The FT certainly has cause for concern. Capital in the 21st century has certainly provoked the reaction that it did more for the ideology that it purports to support (or contradict) rather than the actual economics. And now, Capital is also on its way to having an impact on the credibility of the remaining “serious” journalism that the Financial Times (or the Wall Street Journal) represents.

One can’t but think, however, of that other bastion of uber-serious journalism, The Economist, looking bit bemused at the debate the FT generated. In “A Picketty Problem” (May 24), The Economist noted: “Based on the information Mr. Giles has provided so far, however, the analysis does not seem to support many of the allegations made by the FT, or the conclusion that the book’s argument is wrong.”

So, in a way, I agree with The Economist: “how do the errors affect the fundamental conclusions of the book?” In essence, the problem faced by Dr. Picketty’s supporters is not the numbers but their over-reliance on them (which even Dr. Picketty disavows).

What does it matter ultimately knowing the actual size of the inequality? To lower the credibility of capitalism? It won’t. Will this debate point to the proper way to get rid of inequality? It can’t. And it will never answer why it should be done.

In the end, for a better economy (and society), I point to what Charles Murray, Alasdair MacIntyre, and a host of other commentators critical of the secular progressive mindset are increasingly declaring: the need for society to recognize values and to protect the traditional family institution.

Verily, JL Liedl, writing for Ethika Politika (“Want a Good Economy? Try Virtue”; Sept. 4, 2013) expressed it best: “The dehumanizing theorems and charts of the economist have done us enough harm already. Their consistent failures and the general increase in global misery under their watchful guidance should be enough to convince us that modern economics has been tried and found wanting. Man does not live by bread alone, a truth that must be acknowledged, perhaps especially acknowledged, when considering how man produces and obtains bread. There is something metaphysical in play here, and it must be observed even when dealing with the nitty-gritty, physical practicalities of capital and labor. Virtue, more than anything else, more than economic theories or fiscal policy, is what a society needs to have a good and just economy.”