Our natural Constitution

is my Trade Tripper column in this weekend issue of BusinessWorld:

To my mind, what ironically went below many people’s radar are the most damaging portions of the April 8 Reproductive Health (RH) Law decision penned by Justice Jose Mendoza: “With respect to the argument that the RH Law violates natural law, suffice it to say that the Court does not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is the Constitution.”

It then goes on to say: “While every law enacted by man emanated from what is perceived as natural law, the Court is not obliged to see if a statute, executive issuance or ordinance is in conformity to it. To begin with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere thoughts and notions on inherent rights espoused by theorists, philosophers and theologists. The jurists of the philosophical school are interested in the law as an abstraction, rather than in the actual law of the past or present.”

“Unless, a natural right has been transformed into a written law, it cannot serve as a basis to strike down a law. In Republic v. Sandiganbayan, the very case cited by the petitioners, it was explained that the Court is not duty-bound to examine every law or action and whether it conforms with both the Constitution and natural law. Rather, natural law is to be used sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is applicable.”

The foregoing, with all due respect, evokes a substantial misappreciation of natural law. To say that “natural law is to be used sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is applicable” is itself contradicted by the ruling. Setting aside precisely the fact that the Constitution is silent on the subject of contraception, Justice Mendoza himself declares: “Even if not formally established, the right to life, being grounded on natural law, is inherent and, therefore, not a creation of, or dependent upon a particular law, custom, or belief. It precedes and transcends any authority or the laws of men.“

The ruling also seems to be saying that our Constitution has no philosophy, without history, and has vacuum as context.

Had the ruling been within the parameters of the US Constitution, the above statements would be correct. US constitutional law places strict boundaries on the US Supreme Court’s jurisdiction. Nevertheless, the US SC employed natural law in a number of cases.

Our Supreme Court, on the other hand, has the power to strike down laws considered done with grave abuse of discretion. This serves as basis for our Supreme Court to examine the wisdom of a law (a power not normally given to judicial bodies of other countries), whether the law is in conformity with reason, and complies with the overall objectives of the Constitution.

Our Supreme Court itself knowingly employed the natural law (or reasoning involving or related to it) in many past decisions. Our domestic laws, such as the Civil Code, in fact contain provisions in which the natural law is expressly mentioned. The international law system, which the Philippines is part of, considers natural law as basis for determining whether other international law norms (such as treaties) are valid, a fact constantly recognized by previous Supreme Courts.

Instead, the present Supreme Court seemed to have mixed natural law with a religious freedom argument, a point which Hugo Grotius (the father of international law) sought to dispel: “Natural law would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs.”

The saving grace in all this is found in the dissenting opinion of Justice Mariano Del Castillo: the statements in the ruling quoted earlier “are not necessary in the disposition of this case and appear to be an inaccurate description of natural law. The Court need not foreclose the usefulness of natural law in resolving future cases.”

Hopefully, Justice Del Castillo’s more considered statements could serve as an opening for natural law to be considered in future cases, particularly on legislation involving same-sex marriage, divorce, stem cells, and euthanasia -- all of which the Constitution is silent on and for which only the natural law and the invocation of the “common good” (found in the Preamble) stand as reasonable standards.

And, since natural law has been a part of our constitutional system, resort to it by the Supreme Court can in no way be considered as “judicial activism.”

Finally, this also tells us that our political system is dominated almost exclusively by “positivists” that ignore the culture, history, and philosophy upon which Philippine society is based. There is therefore a need to work harder in correcting this imbalance that has resulted in so much inconsistency in our legal system.


Indigenous peoples: Discrimination within and without

was my Trade Tripper column in this weekend issue of BusinessWorld:

Last Saturday (which providentially was also World Indigenous People’s Day), an interesting round table discussion was held at the University of Asia and the Pacific on indigenous people’s rights. It was led by Ambassador Jose Romero, and done under the auspices of the Center for Research and Communication and UA&P’s School of Law and Governance. I was a speaker in that event and here are some of my notes on the matter, which focused on the need for a consistent legal framework in addressing the issues surrounding tribal people’s rights:

The first thing to be noted is the incompleteness of data regarding the population of indigenous peoples. While government numbers peg 14 million, a variety of figures abound, ranging all the way to 17 million. This is unfortunate. The gap in knowledge makes it difficult then to seriously provide services if the scale for its demand can’t even be determined.

In any event, the numbers, whatever they may be, gives us a bit of insight into the nature of indigenous peoples’ issues. At around 14-17% of the Philippine population, they constitute a far bigger group than the Muslims (around a mere 5%). Although the latter is indeed more concentrated in the South, nevertheless, again in scope of territory claimed (by way of ancestral domain or ancestral lands), indigenous peoples would account for around 20% of the total land area of the Philippines.

And land is where a lot of the issues arise. Here, the need for a consistent framework is palpable, with a seeming disconnect from the land rights of the indigenous peoples as previously understood.

While gratifyingly, indigenous people’s rights in the international sphere have moved conceptually from natural law to positivist and back once more to natural law understandings of human dignity (as can be seen in the 2007 UN Declaration on the Rights of Indigenous Peoples), nevertheless, there is again a Filipino misreading of how international law works.

For one, what works at the policy or conceptual level does not necessarily mean the same can be applied at the implementation level. And, yes, relativism to a certain extent is not necessarily a bad thing (witness international trade policy, for example). Furthermore, at the implementation level, we seemed to have moved from the natural law understanding to positivist but ignoring the differences that a Western or European understanding of indigenous people’s issues might bring to the Asian context.

Furthermore, we also seem to have fallen into the trap of considering any international law document as apt for legislation. In the same manner that we took the World Trade Organization agreements on anti-dumping or safeguards and transported them cut-and-paste style into Republic Acts, so the same impression can be had in relation to RA 8371 (or the Indigenous People’s Rights Acts)

Another problem area in terms of consistency is on the common ownership of lands. Ironically, while looking at Western models, we seem to have disregarded its appalling results. Indigenous peoples in the United States, Australia or Canada live in dire poverty and the same is said to be traceable to what economists call the “tragedy of the commons.” Put bluntly, nobody would bother improving land (or any property) and expend effort to utilize the same productively if it’s owned in common. In short: if everybody owns it then effectively nobody owns it.

Then there’s the consistency issue vis-à-vis the Muslims. Inasmuch as indigenous peoples have a far larger population, claim a bigger land area, have consistently proclaimed their being of the Philippines and that they are proudly Filipinos, and -- most importantly -- have been quite peaceful in their advocacy for better rights and contented themselves with resorting to our legal system, then the indigenous peoples have been given short shrift indeed.

Finally, there is the matter of discrimination against women. As Froilyn Mendoza wrote (in an article for Thomson Reuters, “End The Silence On Rape In Southern Philippines Indigenous Communities”): “Rape is considered an ordinary case that is confined to the expertise of the tribal leaders and settled amicably. Even worse, rape victims are sometimes forced to marry the perpetrator because in our culture, rape is a form of marriage. Cases of incest rape are common. With the prominence of alcoholism among indigenous peoples, physical and sexual abuse is increasing. These cases are settled amicably as part of our customary law, and are not known publicly. The tribal structure is the biggest stumbling block to indigenous women’s empowerment.”

Hence, while indeed balance must be achieved by giving respect to peoples’ cultural identities, nevertheless, political will must be applied in ensuring that our central, most fundamental, Filipino values are respected and followed.

Bangsamoro agreement: More problem than solution

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

Longtime readers of this column know our objections to the Comprehensive Agreement on the Bangsamoro or CAB (stretching as far back to the ill-fated Memorandum of Agreement on Ancestral Domain of President Gloria Arroyo). As I kept pointing out, all four of international law’s elements for statehood have been granted to the Bangsamoro, now just needing a fateful declaration from it that it is indeed a new state.

That the Bangsamoro is geared toward statehood independent of the Philippines is palpable. One sees that in Article I.5 of the Framework Agreement on the Bangsamoro (which forms an integral part of the Comprehensive Agreement).

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.

The argument that people should not worry as the planned Basic Law could fix the infirmities in the CAB is incorrect, for two reasons: one, the Basic Law cannot “fix” (amend) the express provisions of the CAB; and two, 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 CAB 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 (consciously or inadvertently) agreeing to use specific international law terms in the CAB (such as the unwitting use of the words “self-determination,” which technically under international law means “secession”), and the participation of other states in the process (e.g., Malaysia) has arguably elevated the CAB 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).

This is not to mention the fact that the CAB may not even bring the peace for which all these constitutional and legal infirmities were done.

The CAB works on the presumption that there is a “Bangsamoro,” which is actually disputed by some experts. And even if such exists, the CAB involved only the Moro International Liberation Front, which constitutes one group within the Muslim population. This is not even mentioning the large indigenous peoples’ population, whose numbers actually rival that of the Muslims.

How that one group is to legitimately claim political credibility over the others remain to be seen.

With all the troubles that this CAB is bringing (and is expected to bring), I got to wondering: whatever happened to the Brunei Darussalam-Indonesia-Malaysia-the Philippines East ASEAN Growth Area, otherwise known as the BIMP-EAGA?

The BIMP-EAGA was a project started during the presidency of Fidel Ramos and had for its objectives “increased intra- and extra-trade among EAGA focus areas; increased investments in the EAGA sub-region by 10%, and increased tourism arrivals in the EAGA sub-region.” One of its defining characteristics is a strong working relationship between the private and public sectors. And according to most accounts, it worked.

In its early days, the BIMP-EAGA made gains in the area of transportation (both for goods and people), telecommunications and tourism. The latter had the collateral effect of raising awareness in the region, thus giving strong potential for investment.

Admittedly, the 1997 Asian Financial Crisis seriously hampered BIMP-EAGA’s progress. But the BIMP-EAGA countries plowed on, gaining focus on transport linkages, agro-industry and tourism sectors, fisheries, energy, trade and investment.

It is expected that with the coming ASEAN integration, BIMP-EAGA can play a crucial role in its outcome, but not without adjustments coming from EAGA members themselves.

From the Philippine perspective, the problem is that succeeding administrations have paid mere lip service to this project. Surely, there were recent government nods to “regional and international cooperation,” as well as the Davao City-General Santos City-Tahuna-Bitung sea route. But the latter is more of a private sector initiative than anything else.

The fact is, we already have a constitutionally approved autonomous system in place in that area and that is the Autonomous Region for Muslim Mindanao (ARMM).

And most of ARMM’s problems are traceable to economic issues, more than anything else. Despite its wealth in resources, it remains an impoverished area, with a per capita gross regional domestic product of around 70% below that of the national average.

Ironically, ARMM depends on the national government for a huge bulk of its revenue needs. And yet that is what the BIMP-EAGA was designed to solve.

The BIMP-EAGA is certainly a more palatable, mature route than the CAB’s “peace” made up of conditions that fail to conform to the dictates of our Constitution. And most damningly, it is a “peace” that demands that the Philippines meekly submit to the accusation that it indeed inflicted “hurts” on Muslims.


The SONA of our discontent

was my Trade Tripper column in the past weekend issue of BusinessWorld:

Writing this almost five days after the State of the Nation Address (SONA) means that most other commentators have likely said what needs to be said. And yet, implications need to be seen more clearly from what was left unmentioned in the SONA.

Why do this? Not for complaining or pessimism’s sake. But precisely to address our nation’s concerns. For how do we resolve something when we don’t even want to recognize that it needs resolving?

So, as always, context is important. While poverty incidence is said to have improved at 24.9%, the accuracy of that number is suspect considering self-rated poverty went up to 55% in the last three months.

In any event, our poverty numbers (taken at face value) are still way below our ASEAN counterparts, matching only Laos and Myanmar, with even Cambodia having a lower incidence of poverty.

This within the context of almost three million Filipinos currently unemployed, nearly 80% of which are youths 15-34 years old. While unemployment figures recently improved somewhat, many of those considered “employed” are actually either unpaid (about 10%) or underemployed (nearly 20%).

Clearly, we need more jobs. But how, with an imminent power crisis involving Metro Manila and surrounding provinces? This on top of the Philippines’ already unsatisfactory electrification rate of 83%, which is below Thailand’s 88% and Vietnam’s 98%.

Add to this the ridiculous possibility of having a water shortage, despite Metro Manila being constantly inundated by floods. With the metropolis’ rising population, it remains dependent on one dam for its water supply. Which could get worse with the coming of El Niño. The Asian Development Bank (ADB) long warned about this problem, not only with supply but also sanitation.

Then you have other indicators: The 2014 IMD World Competitive Yearbook (WCY) ranked the Philippines 42 (out of 60) this year, four notches down from 2013’s 38.

The 2014 Economic Freedom Index ranks the Philippines 89 (out of 186 countries, “slightly below the world average”), including low ratings for “rule of law,” as well as ease of doing business (in the Philippines, “launching a business takes 15 procedures and 35 days”).

The Philippines also dropped in the World Bank’s Logistics Performance Index, from 44 in 2010 to 57 in 2014.

Our universities fare well neither in the Times Higher Education World University Rankings 2013-2014 nor in the Times Higher Education World Reputation Rankings.

Connect to that the Philippines’ disconcertingly worsening performance in intelligence test scores, averaging 86% IQ levels according to some studies (one of which pointed to the increased exposure to lead as possible culprit).

In OpenSignal’s survey of different countries’ broadband speed, the Philippines came in the slowest and last with regard to time and speed on LTE.

Then there is traffic, with the Japan International Cooperation Agency reporting that Metro Manila traffic in 2012 cost the country an amount equal to 7% of the GDP. Think of that alongside planned increased road repairs. Then you have our overcrowded, chaotic MRT system. Our airport has been rated the world’s worst in 2013, the second time in a row it was so labeled.

And don’t forget smuggling.

All the foregoing probably explains the Philippines having foreign direct investments in 2013 of $3.86 billions, spectacularly short of Malaysia’s $11.7 billion, Indonesia’s $22 billion, Thailand’s $13 billion, and Singapore’s $56 billion.

And this probably accounts for the International Monetary Fund lowering its 2014 Philippine growth outlook to 6.2% (rather than 6.5%).

That, remember, is within the context of recent massive government spending, putting the government back in deficit territory (nearly P54 billion), with public expenditures surging the last few months by 40%.

And we still have to grasp how the hostilities happening right now in the Middle East would affect our overseas workers’ continued employment.

Even assuming that our people do get jobs (and get paid for it), there is also the possible rice shortage next year.

All these within the context of ASEAN 2015 integration, with the necessity of pitting our products and services vis-à-vis competition from our Southeast Asian counterparts.

But what should worry us the most is that teenage pregnancy in this country rose by 70% in the past 10-year period (114,205 in 1999 to 195,662 in 2009). The 2010 figures show 206,574 of such pregnancies, with more than half of that number being girls below 14 years of age. This makes us among the highest in ASEAN and the only country where that number is increasing.

Also disconcertingly, 13-14% of all registered marriages are among teenagers below 20 years old. Meanwhile, there is also a rise in annulment cases, with the Office of the Solicitor General reporting a 100% increase in just 10 years.

The RH Law can’t really help, particularly with regard to rape (many incestuous), which is on the rise. One study documented 4,572 cases of rape for 2010, a 13% increase from 2009.

Then there are the China and the Bangsamoro issues. Oh, and the Freedom of Informatiom bill.