CAB and BBL: The two towers

my Trade Tripper column in the 17-18 April issue of BusinessWorld:

I have been saying it repeatedly. But it apparently needs saying as directly as possible: in a perfect world, handshakes would be sufficient to make an agreement. But as things can go wrong and oftentimes will, responsible people work to craft agreements (and laws) as precisely and carefully as possible to protect the interests of the parties concerned.

From that perspective, one then understands that a reading of the Comprehensive Agreement on the Bangsamoro (CAB, and its related agreements) and the present drafts of the Bangsamoro Basic Law (BBL) lead to the rational conclusion that these are not in the interests of the Philippines.

Or to put it even more bluntly: the CAB effectively serves to provide a semblance of legal cover to the Moro Islamic Liberation Front’s claim to statehood, while the BBL aims to supply the resources and implementing wherewithal to carry out that claim.

Again: all four international law elements of a State have been granted to the Bangsamoro in the CAB. That it has the elements of “people” and “government” are seen from the provisions of Articles I.1, I.2 and I.5 of the Framework Agreement. That it has the element of “territory” is seen from the provisions of Article I, as well as Article V, particularly Article V.1. The fourth element, the capacity to enter into international agreements, can be seen from the provisions of the Framework Agreement and the Power Sharing Agreement. All without a word that such agreements are to be made subject to the Philippine Constitution.

The CAB also provides police powers, taxation, and eminent domain. It even gave executive, legislative and judicial branches of government. At this point, for the Philippines to refuse “recognition” to the Bangsamoro is inutile. Nothing is stopping the MILF from declaring anytime that they are now the “Bangsamoro” 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 Comprehensive Agreement would readily give that recognition.

Worse, the government, by agreeing to terms in the CAB like “armed conflict,” “self-governance,” “combatants,” the “justness” and “legitimacy” of the “cause of the Bangsamoro,” and the unwitting use of the term “self-determination,” and the participation of other states in the process arguably elevated the CAB to the level of an international instrument.

As for the words “self-determination,” I have always cautioned that such “right” is usually granted by international law to counter the regretful effects of colonialism or foreign military occupation. International law professor Antonio Cassese points out that self-determination (as opposed to mere “internal self-determination,” referring to local autonomy, and economic and social development) is not available to “religious, cultural or linguistic minorities.”

So the MILF would not have qualified for such a right under international law. Which is well and good because self-determination under international law essentially means “secession.”

Unless, of course, it is voluntarily granted by a government through formal agreement. Unfortunately, the CAB and BBL are full of references to the Bangsamoro’s right to “self-determination.”

Hence, the significance of the MILF’s insistence that the CAB is an international (“executive”) agreement: because effective international agreements generally cannot be thwarted by local laws and institutions (including the Constitution) at the international level.

Even if Congress produces a BBL conforming to the Constitution, the MILF can disregard that by saying that such a BBL does not comply with a binding international agreement that is the CAB. This also weakens any possible pronouncement by the Supreme Court because the MILF would likely argue that it has international personality and not within the coverage of Philippine jurisdiction.

To reiterate: As of March 27 last year (the signing of the CAB), all the Bangsamoro needs to do is declare that it is a new state. Why it hasn’t is an interesting question. But certainly, if a BBL (in its present form) passes, then that would provide the MILF with the legal cover to receive funding, resources and legitimacy both from the government and from international donors.

And if, after a few years, for some reason, perhaps due to some fault (imaginary or real) committed by the Philippines, the Bangsamoro decides to detach from the country, the MILF has the CAB’s legal cover providing it with the elements of statehood, which it can use to gather support from other countries (perhaps Malaysia, which participated in the CAB’s signing).

It’s not too late: Congress can make a law terminating the CAB, which the President is duty-bound to enforce (Article VII, Section 17). Or it can have the CAB classified as a treaty and turned down by the Senate.

Either way, it could open up the opportunity for Congress to make a law not exclusive for any single group but one that can be best described as a comprehensive law for an all Mindanao peace and development.

Bangsamoro interview

My guesting on Erik Espina's Republika, where I discussed my take on the Bangsamoro Basic Law. The interview was broken into five parts and can be found here, here, here, here, and here, respectively.


The Supreme Court ruling on the RH Law: One year later

my Trade Tripper column in this weekend issue of BusinessWorld:

Last Apr. 8 marked a year to the day of the Supreme Court’s ruling in Imbong vs. Ochoa, more commonly known as the “RH Law case.” Quaintly touted then as the “trial of the century,” it paved the way for a ruling with fundamental implications for social policy and jurisprudence here in the Philippines. Albeit in a manner not recognized by many. Indeed, while the RH Law case represented a victory for organized legal planning and cohesive argumentation, it at the same time saw one of the more eccentric examples of lack of focus in legal advocacy.

One has to give credit indeed to the government lawyers who defended the law -- led by then Solicitor General (now Supreme Court Justice) Francis Jardeleza and Assistant Solicitor General (now Solicitor General) Florin Hilbay -- for their well orchestrated, legally coherent, and sophisticatedly reasoned stand.

Conversely, one can only shake one’s head at the mystifying amount of attention given by the Court on “abortifacients” and “the right to life.” This becomes evident when one realizes that the question of life’s beginnings should never have been an issue in the first place. One can see this not only from the Supreme Court’s immediate affirmation that “life begins at conception” but from the very fact that 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.” But to emphasize how surrealistic (or just plain baffling) the whole thing is: whenever somebody now wants to complain about alleged abortifacients, the law they run to for protection is -- you guessed it -- none other than RA 10354.

All the while, the real and true issue of artificial non-abortifacient contraception was inexplicably forgotten.

During the early days of the release of the ruling, the idea was even flouted (evidently as a face-saving measure) that contraception was not really the target of the complaint. But that is wrong. And irresponsible. The reality is that government subsidization of contraception was and has always been the point of the entire case.

Ironically, it took a foreigner to grasp the various significant parts and implications of the ruling. Brian Simboli, writing for Public Discourse, puts it this way:

It is “troubling that while the Court asserts there is no compelling state interest to justify overriding the conscientious objector rights of health providers, it does not similarly conclude that objecting taxpayers should not be burdened coercively with taxes used to purchase contraceptives.”

This is significant because the main point of the RH Law was not that it made contraceptives legal (it has always been legal and cheaply available, cheaper than bottled water), but that it provided huge amounts of tax money to subsidize it.

Think about that when you read about the Department of Health asking for an additional P1.7 billion in its budget this year for the exclusive implementation of the RH Law. Admittedly, not all of it will be used for the purchase of contraceptives.

But note: the latest Global Competitiveness Report indicated tuberculosis as one of the country’s biggest health problems, with the Philippines ranking a low 127 (out of 144 countries) in this area and with a business impact of 114. The Philippines also ranked low in primary education and infrastructure. Why not put the money there?

The foregoing is crucially within the context of another fact that Simboli points out: “[The Supreme Court] did not dismiss a petitioner claim that oral contraceptive use has been correlated with significant health risks.”

But the most damaging portion of the ruling is when the Supreme Court, to use the words of Simboli, “greatly delimits the role of natural law reasoning.”

The ruling, with all due respect, evokes a substantial misappreciation of natural law. It seemed to say that our Constitution (and all our laws) has no philosophy, without history, and has vacuum as context. Had the ruling been within the parameters of the US Constitution, the RH Law ruling may have credence. But even then, the US Supreme Court employed natural law reasoning 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 (a power that the US Supreme Court does not have) and itself knowingly employed the natural law (or reasoning involving or related thereto) in many of its past decisions.

The significance of this, as Simboli points out, is that it renders our Supreme Court with “quite a weak basis for responding to whatever legislative threats may emerge, not just to the pro-life cause, but also to the centrality of the family.”

In short, think about the consequences of the RH ruling the next time the issues of same-sex marriage, divorce, euthanasia, LGBT “rights,” and even abortion comes up.


The SOGI law will hurt business owners, schools, the military

my Trade Tripper column in the 27-28 issue of BusinessWorld:

Simply put: to create “rights” based on purported sexual orientation or gender identity (SOGI) is bad policy, without basis, and wholly problematic. It will lead to substantial long-term confusion and (ironically) discrimination. As I pointed out in my congressional testimony, in the end there is no such thing as SOGI rights, there is just human rights.

Witherspoon Institute’s Ryan Anderson pretty much said the same thing when he testified before the US Congress on the Employment Non-Discrimination Act Bill. In an article based on his own testimony (“Sexual Orientation and Gender Identity Are Not Like Race: Why ENDA is Bad Policy,” March 2015), Mr. Anderson emphasized the ambiguous nature of sexual orientation or gender identity: “Social science research continues to show that sexual orientation, unlike race, color, and ethnicity, is neither a clearly defined concept nor an immutable characteristic of human beings. Basing federal employment law on a vaguely defined concept such as sexual orientation, especially when our courts have a wise precedent of limiting suspect classes to groups that have a clearly-defined shared characteristic, would undoubtedly cause problems for many well-meaning employers.”

“McHugh and Bradley caution against elevating sexual orientation and gender identity to the status of protected characteristics because of the lack of clear definition: ‘There is no scientific consensus on how to define sexual orientation, and the various definitions proposed by experts produce substantially different groups of people’.”

The point is that, no scientific consensus exists that homosexuality is genetic. And there is no consensus on the nature and origin of sexual orientation. This is significant. Because in order for a penal law, such as the SOGI bill, to be effective, it must be:

a) able to identify properly those covered by the protections it offers; and

b) capable of being implemented by the police or judicial system in terms of evidence.

The SOGI bill does give definitions of “gender identity” and “sexual orientation” but they are unfortunately (and expectedly) ambiguous and superficial. Much of what can constitute identity or orientation cannot be seen through clothing or even at skin level. And yet, the State is expected to punish individuals (e.g., employers, faculty administrators, business owners, ordinary service employees, etc.) for any failure on their part to identify due to lack of workable standards on the very particular kind of person covered by the bill.

There is also the difficulty of proving that one has indeed been discriminated due to gender identity or sexual orientation (and not for any other reason), and of proving that such a status of gender identity or sexual orientation did exist at the time of the supposed discrimination.

In other words, there is the failure to identify the evidence necessary that must be presented to our courts that at the time of the supposed discrimination taking place the person making the claim is indeed covered under the purview of the provisions of the SOGI bill and that the person or persons committing the discrimination did so because of that complainant’s sexual orientation or gender identity and not for another (justifiable) reason. This difficulty is heightened because of the possibility that sexual orientation can unilaterally change through time.

Mr. Anderson also effectively put down the mistaken notion that sexual orientation is similar to race: “While race implies nothing about one’s actions, sexual orientation and gender identity are frequently descriptions for one’s actions: ‘gay’ denotes men who engage in voluntary sex acts with other men, ‘lesbian’ denotes women who engage in voluntary sex acts with other women, and ‘transgender’ denotes a biological male who voluntarily presents himself to the world as if female or a biological female who voluntarily presents herself to the world as if male. ‘Race’ and ‘sex,’ by contrast, clearly refer to traits, and in the vast majority of cases denote no voluntary actions.

“Bans on interracial marriage and Jim Crow laws, by contrast, were aspects of an insidious movement that denied the fundamental equality and dignity of all human beings and forcibly segregated citizens. When these interracial marriage bans first arose in the American colonies, they were inconsistent not only with the common law inherited from England, but also with the customs of prior world history, which had not banned interracial marriage.”

Finally, despite the quite limited size of the LGBT population (a recent US study pegs its own LGBT population to 2-5% of population, the Philippine demographic will not be too far off), the SOGI bill quite irresponsibly failed to consider the obvious effects it will have on the great majority of Filipinos. Judging by the usual listing that LGBT advocates have regarding the ‘rights’ they are pushing for, such will involve laws relating to employment, military service, adoption, marriage, student activities, parenting, schools, religion, and government identity documents.

Truth is, we don’t need a SOGI law as we already have SOGI laws: among others, they are called the Constitution, the Civil Code, the Revised Penal Code, and the Labor Code.

Interview on ASEAN integration

My December 2014 (well, i think it was December) Eagle News PH interview on ASEAN integration and competition policy, that for some reason then shifted to a discussion on the 'effects' doctrine in international law. View here.

Improving thinking on Philippine trade policy

my Trade Tripper column in the 20-21 March issue of BusinessWorld:

Despite the extremely parochial topics with which Philippine national discussions have been confined to (a situation that will most likely remain until well after the 2016 elections), international trade goes on. Naturally, movement in this area has unsurprisingly stagnated, particularly the continued simplistic binary way of thinking that divides policy lines into that of protectionism and liberalization. Incidentally, this passé kind of analysis also dominates how we look at competition policy.

However, as Simon Lester of the International Economic Law and Policy Blog points out, in the area of free trade agreements, the analysis has moved beyond such bleak duality: “What is the core purpose of trade agreements? [Some simply explain that] governments make trade agreements to reduce protectionism. That is the story most people are familiar with, and take for granted. We’ve all heard of protectionism; we all have a sense of what it is, although definitions may vary.”

There is another view: “Trade agreements will never reduce protectionism as we normally understand it. Rather, the sole function of trade agreements in the Bagwell-Staiger/Grossman-Helpman model is to eliminate terms-of-trade manipulation, unilateral trade policy that aims at improving the home country’s terms of trade. Terms-of-trade manipulation is a completely distinct phenomenon from protectionism, reflecting a different governmental motivation.”

Mr. Lester further states that “there are actually some additional theories about the purpose of trade agreements. There’s the domestic commitment theory (a trade agreement ‘can serve as a commitment device for a government to close the door to domestic lobbies’), and several new theories: ‘firm-delocation’ externalities in the presence of free entry, ‘profit-shifting’ externalities, and trade-volume externalities when prices are determined by bilateral bargaining.”

The distinction in perspectives is subtle but utterly significant: “With anti-protectionism as its goal, the system can use traditional and familiar provisions... to identify and prohibit protectionist measures.”

“By contrast, with terms of trade manipulation, the scope of the system is a lot less clear... Keep in mind, the optimal tariff... is not the only measure the proponents of this view have in mind. They also envision that domestic laws and regulations could be used for terms of trade manipulation. So how would the trading system address such measures through specific legal obligations? How would the Seal Products measure, or the Tuna-Dolphin measure, or plain packaging laws be examined if the issue was whether they constitute terms of trade manipulation?”

The foregoing lays the ground for reminding us of a misunderstood (hence oft abused) reality of international trade. This is best described by former World Trade Organization Director-General Pascal Lamy when he visited the Philippines: for a country to do well in the international trade system it must have, “first, the importance of national vision -- backed by a comprehensive strategy for getting there. No one can tell a country how to trade or become more competitive. The only successful export-led growth strategy is one which countries want themselves -- that they design and implement on their own -- and that remains on course over the long term.”

Verily, the overriding context is always national interest. Which a country formulates on its own and by itself.

Regarding the foregoing, one can’t help but be further reminded of a memorable “white paper” issued by the Australian government that analyzed Australia’s place in a future Asia: “There was acceptance that the big changes that had to be wrought in the Australian economy and society to manage a world in which the new Asian powers will be a dominant force in the global order was a task beyond the capacity of government or policy alone. It required participation from across the community -- including business, educational institutions, community leaders, unions -- and nothing less than a change in national mindset. There was no quick policy fix to the problem. It was a long-term task on which a national consensus had to be patiently forged, and an ongoing national conversation must be had.”

Notably, “an important element was the priority of building deeper, more comprehensive relationships with the three big new emerging powers in the region -- China, Indonesia and India. These relationships were still significantly underdone. Getting it right with China, Indonesia and India was not just a matter of tweaking established arrangements at the edge of economic, political and security exchanges. It was a far bolder ambition that required energies and talents not confined to government and shifting the culture in which these exchanges were conducted.”

Nevertheless, care must be taken that we ourselves not fall into the policymaker’s or economist’s obsession with numbers. In the end, trade agreements begin and end with people. And the Philippines has not been ideal in properly caring for the senior population and the youth. Finally, like any discussion involving law, we must recognize trade’s effect on a country’s morals, values, and culture.


The Bangsamoro's international law gambit

my Trade Tripper column in the 13-14 March issue of BusinessWorld:

It has long been my position that whatever draft Bangsamoro Basic Law is passed by Congress, it would ultimately be inutile for the reason that there exists the quite unconstitutional Comprehensive Agreement on the Bangsamoro (which, along with the Framework Agreement and other related agreements, shall hereafter be referred to as the CAB). Or put another way: the debate about the Basic Law’s constitutionality is a false flag, a distraction.

To repeat: our government, by agreeing to terms in the CAB like “armed conflict,” “self-governance,” “combatants,” the “justness” and “legitimacy” of the “cause of the Bangsamoro,” “internal waters,” “core territories,” and the unwitting use of the term “self-determination” (which under international law is essentially “secession”), contributed to elevating the CAB to arguably an international agreement.

Also, allowing Malaysia’s “witnessing” of the CAB is definitely eccentric. Aside from bolstering the internationalization of the CAB argument, it also raises questions of prudence: Malaysia, after all, is contesting our ownership of Sabah.

Then there is the Department of Foreign Affairs’ leading role in this issue. Autonomous local governments have always been under the Department of the Interior and Local Governments. This is so even for other countries: Native American issues were placed under the United States Department of the Interior; for a time, the Northern Ireland issue was under the United Kingdom’s Home Office. There was no reason why the same thing could not have been done relative to the Bangsamoro. This is not a mere administrative question. The consequence is the public signal that our government sees the Bangsamoro as a “foreign affairs” issue.

And it does not help that a number of Constitutional Commission members to the 1987 Constitution issued a January 2015 statement expressing support for the “creation of the Bangsamoro Autonomous Region” and that it “can become part of international law” upon “its acceptance by the community of nations.” Why should such a “region” need acceptance by other countries? This is a purely internal matter about and between Filipinos.

But then, the Moro Islamic Liberation Front (MILF) clearly viewed the CAB as an international agreement. Reacting to a statement of Senator Miriam Defensor-Santiago that the CAB needs Senate approval, MILF Vice-Chairman Ghazali Jaafar disagreed, saying in a phone interview with GMA News that the nature of the agreement that the MILF signed with the government is an “executive agreement.”

Now the difference between an executive agreement and a treaty is that the latter requires Senate approval (executive agreements do not). But this must be emphasized: under both international law and Philippine law, an “executive agreement” is an international agreement.

What is the significance of this? Huge.

It renders any effort on the part of Congress to “fix” the Basic Law futile. Because it is in the nature of international agreements that they are not to be thwarted by local laws and institutions (including the Constitution).

So even if Congress does produce a Basic Law that conforms to the Constitution, the MILF can disregard that by saying that such a Basic Law does not comply with a binding international agreement that is the CAB.

This also reduces any eventual pronouncement by the Supreme Court as irrelevant. Because any ruling the Supreme Court has is only applicable within the territory and jurisdiction of the Philippines.

Besides, the MILF can also argue (by logical extension) that it has international personality and not within the coverage of Philippine jurisdiction.

As to a possible counter-argument that the MILF agreed for the CAB to go through Philippine constitutional processes before it becomes effective, it must be remembered that the MILF’s stated position is that it understood “it was negotiating with the totality of the Philippine government or ‘whole government,’ especially since, among other reasons, the commander-in-chief powers of the President allow him to bind the whole of government, including its different branches.” (See the Dec. 29, 2014, letter of MILF Chairman Al Haj Murad Ebrahim to the House ad hoc committee on the Basic Law.)

In other words, the MILF has taken the position that it acted upon our government representation that the Executive speaks for the other two branches, and thus the contra-constitutional CAB is effective upon signing.

Thus, this: if the Basic Law doesn’t conform to the contra-constitutional CAB, the MILF now has the diplomatic and international law cover to seek foreign assistance (whether it be international organizations or tribunals or countries) in “correcting” the Philippines’ alleged violation of an international obligation.

All these explain why the Constitution is barely mentioned in the CAB (just once, and only to bizarrely say that the Constitution should be amended to conform to the CAB).

Interestingly, the Basic Law (if passed as currently drafted) will be the only Philippine law ever that is subject not only to the Constitution but also to “international law,” “system of life prescribed by [Muslim] faith,” and “harmony with our customary laws, cultures, traditions.”

To be charitable, the CAB doesn’t seem well thought through.